Trustor:
MKroplick
Subject:
CA Civil Code 2923.5
According to the California Civil code and recent amendments to 2923.5 A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30days after satisfying the due diligence requirements as described in subdivision (g). My interviews with the Trustor were unable to ascertain any compliance what’s so ever by the lender with regards t the civil code that mandates some attempt at assistance.
VIOLATIONS:
Upon discussing this issue and the significance of the implied goal to assist consumers the borrower (name) determined that the mortgagee, beneficiary, or authorized agent did contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent eating and, if requested, the mortgagee, beneficiary, or authorized agent hall schedule the meeting to occur within 14 days. The assessment of the rower’s financial situation and discussion of options may occur during the
There was no initial first contact, or at the subsequent meeting scheduled at (address) for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban envelopment (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically. (b) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower as required by this section, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized agent. (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to the enactment of this section and did not subsequently file a notice of scission, then the mortgagee, trustee, beneficiary, or authorized agent hall, a part of the notice of sale filed pursuant to Section 2924f, include declaration that either:
(1) States that the borrower was contacted to assess the borrower's financial situation and to explore options for the borrower to Avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the event no contact was made.
(d) A mortgagee's, beneficiaries, or authorized agent's loss mitigation personnel may participate by telephone during any contact required by this section. (e) For purposes of this section, a "borrower" shall include mortgagor or trustor.
(f) A borrower may designate a HUD-certified housing counseling agency, attorney, or other advisor to discuss with the mortgagee, beneficiary, or authorized agent, on the borrower's behalf, options for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the borrower. (g) A notice of default may be filed pursuant to Section 2924 when mortgagee, beneficiary, or authorized agent has not contacted borrower as required by paragraph (2) of subdivision (a) provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. For purposes of this section, "due diligence" shall require and mean aloof the following:
(1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by HUD to find HUD-certified housing counseling agency.
(2) (A) after the letter has been sent, the mortgagee,Beneficiary, or authorized agent shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.(B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated system to dial borrowers, provided that, if the telephone call is answered, the call disconnected to a live representative of the mortgagee, beneficiary, or authorized agent.(C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower’s primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected.(3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send acetified letter, with return receipt requested.(4) The mortgagee, beneficiary, or authorized agent shall provide means for the borrower to contact it in a timely manner, including toll-free telephone number that will provide access to a live representative during business hours.(5) The mortgagee, beneficiary, or authorized agent has posted prominent link on the homepage of its Internet Web site, if any, tithe following information:
Showing newest 14 of 17 posts from 11/29/09 - 12/6/09. Show older posts
Showing newest 14 of 17 posts from 11/29/09 - 12/6/09. Show older posts
Dec 7, 2009
SAVING YOUR HOME REQUIRES A PLAN
There are strategies for competent attorneys that a lay person should stay clear from. They will not necessarily have anything of direct consequence with your loan or default situation. These discussion will none the less serve a purpose in exacting a fair and honest resolution to your dilemma. For example, a whole loan assets is sold with all the rights of the asset including the servicing rights and capacity to enforce acceleration and a power of sale. An interest in the asset will be assumed if the asset is sold less everything intact.
The sale versus not a sale accounting treatment will trigger derecognition or when a financial asset or financial liability must be removed from an entity’s statement of financial position and the related derecognition disclosure requirements in IFRS 7 Financial Instruments / [IAS 39 Financial
Instruments: Recognition and Measurement (IAS 39)] Disclosures.
The note arguments are not going to hold water ,not for long whereby a UCC defeats the purpose of having the note at all. If a borrower obligation involves the recording of a instrument and that instrument follows the note, so what?
1) Was there a wire or consideration exchanged amongst the parties? One $ billion pool of assets none the less will require the pooled assets to be registered and identified accordingly. The world will forever have that information available to it at its finger tips. In fact, the current means for recording a deed of trust or mortgage will be over soon in favor of a UCC filing. The lost note can work against you also. Your claims the note is lost wont circumvent a lender from achieving it rights afforded by the express understanding of the parties, terms and conditions and state code.
You wont be let off the recording in public records whereby the deed was recorded as a security.This wont happen for the masses at least.
Remember the Tender
1) You received consideration as the maker of the note.
2) Read the note for the terms and conditions related to a lost note.
3) UCC data entry is consistent and that loan is recorded under a uniform commerical code filing as part of a block pool of assets.
4) A debtor default after 12 or more months of payments "as agreed" is a condition precedent with an express and implied understanding,
5) The majority of courts will view an otherwise valid note using a lost note affidavit.
** These BK cataclysmic decisions are not going to survive an appellate court or arguing to throw out the obligation.
Clandestine and secretive arrangements are something that happens all the time. Deals are cut in the lenders dark backrooms, in the alleys and undercover at lunch while dining at Spago's.
Note where I mentioned before how I was outspoken about the use of a "blank endorsement" and "blank assignments". They were an accommodation tool to expedite wires but they (lenders and conduits) continued to do it after MERS became wide spread.
Why, that is what MERS is required to do in an accommodation and recording correct.
A whole loan assets is sold with all the rights of the asset including the servicing rights and capacity to enforce acceleration and a power of sale. An interest in the asset will be assumed if the asset is sold less everything in tact.
Dec 5, 2009
Focusing on Foreclosures and Now that the election's over, is relief in sight? Web Exclusive
Nov 6, 2008 Updated: 5:05 p.m. ET Nov 6, 2008
Newsweek reports with the election concluded, Washington can turn away from the cable pundits and turn its attention back to the financial crisis. And as they do, one task looms large: What's the best way to help struggling homeowners who are facing foreclosure?
According to Maher Soliman a Los Angeles based foreclosure analyst "I agree with the article" It's an effort that began more than a year ago, when the government began offering programs like FHA Secure and the Hope Now alliance.
So what about the flaws with the existing government programs to help refinance or modify loans.
For many homeowners, refinancing is out of the question, since their homes are now worth less than their loan amount, and their credit scores have fallen due to missed mortgage payments. Marks say too many loan modifications don't take a realistic look at whether the homeowner will really be able to make the new payment.
Soliman also concedes how those programs are intended to help homeowners. By that he means to say the programs allow you to refinance into more affordable mortgages or work with lenders to modify their loan terms and reduce their payments.
But as unemployment increases and more people face the prospect of foreclosure, critics say these initial programs aren't doing enough to help. With taxpayers putting up hundreds of billions of dollars to bail out financial institutions, it's time for the government to become more proactive about saving people's homes.
While there is no shortage of proposals for what should be done, by far the leading contender is being pushed by Sheila Bair, the chairman of the Federal Deposit Insurance Corporation (FDIC). This summer, the FDIC took over a failing bank called IndyMac and went to work swiftly modifying thousands of homeowners loans. Instead of doing a painstaking case-by-case analysis of each loan, which is what made existing modification programs move so glacially, IndyMac began applying standard formulas, based on each homeowner's income to determine whether they could reduce the interest rate or extend the term of the loan to create an affordable monthly payment.
Under the FDIC's plan, this type of program would become a nationwide standard. But for the last week the proposal has been bogged down by bureaucratic snafus. On Tuesday, The Wall Street Journal reported that officials at the Treasury Department and the White House weren't yet willing to sign-on. Some observers believe the Republican administration wanted to sit on the proposal until after the election, to avoid giving the appearance that it was totally ignoring John McCain's proposal to have the federal government buy up mortgages from troubled homeowners.
Does the FDIC plan make sense? To get an answer, I called Bruce Marks, CEO of the nonprofit Neighborhood Assistance Corporation of America. Marks, whom the Boston Globe once called "one of the most feared men in the corporate boardrooms of the nation's leading financial institutions," has spent years advocating for homeowners. In the last year, his group has helped thousands of U.S. homeowners work with banks to modify their mortgages. His take on the FDIC plan: "It's a huge step forward ... Sheila Bair gets it."
Soliman who is registered with Juri Pro as a foreclosure specialist offers 25 years of secodary and primary mortgage banking experience. He agrees that the FDIC program starts by taking a hard look at what homeowners can actually pay.
Once it calculates an affordable payment, pros start playing with the mortgage numbers to see what they can adjust to hit that magic number. They start by reducing the interest rate. If that doesn't push the payment low enough, they'll extend the term of the loan. As a last resort, they'll consider lowering the principal amount of the mortgage. The mortgage holder loses money in any of these scenarios, but the appeal of these deals is that they usually lose less than if they foreclose on the house. Marks says these deals are also better in the long run than modifying a mortgage that winds up in default a few months later.
"If you provide a homeowner with an affordable mortgage payment that you lock-in forever, there's a fully amortizing loan," he says, meaning the homeowner will be gaining equity with each payment and will eventually pay the loan down to zero. Even if the homeowner is currently "underwater" (meaning the loan exceeds the value of the home), if they can afford the payment and are building equity, they have every reason to stay in the house.
Marks' views make sense to me. At root, the mortgage crisis was sparked when the industry's underwriting process lost its focus on the question that should be its primary interest: Can this person pay back this money? Now, as the government seeks to help thousands of homeowners out of this crisis, creating a streamlined program that's focused on that question sounds like a smart move.
—Daniel Mcginn Is a National Correspondent at Newsweek and the Author of"House Lust: Americas Obsession With OurHom
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Posted By Mortgage-Mess to Foreclosure Info Search at 2/25/2009 07:49:00 AM
EXPERT WITNESS TESTIMONY
(a) Required Disclosures.
(1) Initial Disclosures.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal statute;
(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
n administrative summons or subpoena;
(vi) an action by the United States to recover benefit payments;
(vii)an action by the United States to collect on a student loan guaranteed by the United States;
(viii)a proceeding ancillary to a proceeding in another court; and
(ix) an action to enforce an arbitration award.
(C) Time for Initial Disclosures — In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
(D) Time for Initial Disclosures — For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party's disclosure.
(D) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
(i) the name and, if not previously provided, the address and telephone number of each witness — separately identifying those the party expects to present and those it may call if the need arises;
(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
(iii) an identification of each document or other exhibit, including summaries of other evidence — separately identifying those items the party expects to offer and those it may offer if the need arises.
(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made — except for one under Federal Rule of Evidence 402 or 403 — is waived unless excused by the court for good cause.
(4) Form of Disclosures.
Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.
(b) Discovery Scope and Limits.
(1) Scope in General.
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording — or a transcription of it — that recites substantially verbatim the person's oral statement.
(4) Trial Preparation: Experts.
(A) Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(C) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (B); and
(ii) for discovery under (B), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
(5) Claiming Privilege or Protecting Trial- Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trialpreparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(c) Protective Orders.
(1) In General.
A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
(2) Ordering Discovery.
If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
(3) Awarding Expenses.
Rule 37(a)(5) applies to the award of expenses.
(d) Timing and Sequence of Discovery.
(1) Timing.
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
(2) Sequence.
Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
(e) Supplementation of Disclosures and Responses.
(1) In General.
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness.
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
(f) Conference of the Parties; Planning for Discovery
(1) Conference Timing.
Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
(2) Conference Content; Parties' Responsibilities.
In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
(3) Discovery Plan.
A discovery plan must state the parties' views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule.
If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
(A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
(g) Signing Disclosures and Discovery Requests, Responses, and Objections.
(1) Signature Required; Effect of Signature.
Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name — or by the party personally, if unrepresented — and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2) Failure to Sign.
Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
(3) Sanction for Improper Certification.
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
(1) Initial Disclosures.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal statute;
(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
n administrative summons or subpoena;
(vi) an action by the United States to recover benefit payments;
(vii)an action by the United States to collect on a student loan guaranteed by the United States;
(viii)a proceeding ancillary to a proceeding in another court; and
(ix) an action to enforce an arbitration award.
(C) Time for Initial Disclosures — In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
(D) Time for Initial Disclosures — For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party's disclosure.
(D) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
(i) the name and, if not previously provided, the address and telephone number of each witness — separately identifying those the party expects to present and those it may call if the need arises;
(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
(iii) an identification of each document or other exhibit, including summaries of other evidence — separately identifying those items the party expects to offer and those it may offer if the need arises.
(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made — except for one under Federal Rule of Evidence 402 or 403 — is waived unless excused by the court for good cause.
(4) Form of Disclosures.
Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.
(b) Discovery Scope and Limits.
(1) Scope in General.
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording — or a transcription of it — that recites substantially verbatim the person's oral statement.
(4) Trial Preparation: Experts.
(A) Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(C) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (B); and
(ii) for discovery under (B), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
(5) Claiming Privilege or Protecting Trial- Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trialpreparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(c) Protective Orders.
(1) In General.
A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
(2) Ordering Discovery.
If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
(3) Awarding Expenses.
Rule 37(a)(5) applies to the award of expenses.
(d) Timing and Sequence of Discovery.
(1) Timing.
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
(2) Sequence.
Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
(e) Supplementation of Disclosures and Responses.
(1) In General.
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness.
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
(f) Conference of the Parties; Planning for Discovery
(1) Conference Timing.
Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
(2) Conference Content; Parties' Responsibilities.
In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
(3) Discovery Plan.
A discovery plan must state the parties' views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule.
If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
(A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
(g) Signing Disclosures and Discovery Requests, Responses, and Objections.
(1) Signature Required; Effect of Signature.
Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name — or by the party personally, if unrepresented — and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2) Failure to Sign.
Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
(3) Sanction for Improper Certification.
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
Dec 4, 2009
foreclosureinfosearch
Upon the acquisition of servicing rights, Servicing coordinates with the prior servicer of the mortgage loans to achieve a transfer of servicing activities with minimal impact to borrowers. The transfer and boarding process involves notifying the borrowers of the servicing transfer, transferring electronic files containing loan set up information and a payment history, if applicable. In addition, loan documents are stored either in hard copy or electronically imaged form for future review and reference.
We look forward to working with you. Please feel free to call me direct with any questions.
Telephone 213-627-2324
We look forward to working with you. Please feel free to call me direct with any questions.
Telephone 213-627-2324
Do I have it now, Maher?
usedkarguy, on December 4th, 2009 at 11:50 am Said:
I GOT IT! There is no “investor” or “third party”. It is only the originator dressed up in costume as “the registrant”. That’s why the foreclosure is continually directed by Wells even thought the attorney says the client is “confidential”. There is no client, just the bank! Especially since these “deals” were shelved.
There is no investor, only the Bank that holds the “assets”. And that’s another registrant of Wells “WFASC 1999 trust (formerly Norwest Asset Securities Corp.)” shows ownership relationship via the SEC.
Do I have it now, Maher?
-----------------------------------------------------------------------------
mortgagelies, on December 4th, 2009 at 11:13 pm Said:
usedkarguy,I am proud of you….very happy. Now show these nay say’ ers and win your case Damn it!
msoliman
expert.witness@live.com
mortgagelies, on December 4th, 2009 at 11:09 pm Said:
Roger;
It’s all about the Bank…an OTS member Federal Savings Bank Brother. You got it…..
When you approached me YOU did not want to hear the message and like others I am then called a Rip Off or nut or one of the two (LOL)
When MSNBC asked their top analyst (whom I know) who is to blame he said…FDIC baby for letting the bank allow this crap to happen in the first place! Who do I call of all the parties interested? FDIC (before MSNBC comments). Who do their attorneys pass me off to – top gun in compliance? And what was one thing that stuck out in the phone call. Four times I am told to “Stop! Calling this a bank Securitization platform!
Let’s see, Wells is Trustee for Citi and B of A is trustee for Wells and B of A is Barclays and …what boat full of crap!FIERRA was dead maybe 36 months when these Wall Street animals created this alternative to BORING GSE (Fannie and Freddie) lending and used Sub Prime to dupe the regulators . . .Or maybe not?
I know when I got out that CWHL “indicted” Chairman is complaining about not owning a Bank . . . it was keeping him out of the game and he could not compete. The same guys who said told me in Boston “Why would we do Sub prime…we shop at Macys while you shop at Marshalls”.
Really!Next the biggest and most prestigious institutional and retail banks are going down in a Rat Vessel of mortgage lending waste! Why?What happened friends is that owning a Federal Savings Banks under the OTS suddenly made Subprime lending a MUST HAVE and huge hit.
The OTS allows NA’s like WaMu and Indy Crack Bank to open a FSB with its own Depositor base (DEPOSITOR -Get it!) in Provo Utah. What Da Funk.I see everyone operating in this incestuous game of high profit and high margins teenage wasteland as Washington finalizes deregulation of the banking system. Help Lord. . . there’s more…but who listening…It’s Spam, its solicitation its , its SICK AND NO ONE WANTS TO LISTEN! Do I have more….Oh yeah!! ! ! !
M.Soliman
Expert.Witness
(Be careful . . . the hatred and nasty comments are coming Waaaaaaaaa! – I can feel it!)
mortgagelies, on December 4th, 2009 at 2:59 am Said:
For those with learning impediments . . .
Counsel for the lender!
mortgagelies, on December 3rd, 2009 at 11:40 pm Said:
CASE STUDY (Actual Case)
For those with learning impediments . . .
1) I made a loan…..
2) I sold a loan…..
3) I bought back the home….
Who were you negotiating a deal with when you were talking a modification or short sale during the time from 2) to 3)?
Note : To pursue objects for which men were sent into the world, to employ the mind on subjects most noble within the reach of its present powers, is certainly to lay the best claims to the honor of manhood.
Comments: Many who pride themselves on being men of honor, deem it manly to neglect religion, and account it weak and womanish to yield to the tendernesses and softnesses of piety.But they turn the tables. With powers capable of manly aims but devoted to childish play, they appear to angels as one would appear to us who at the age of fifty should busy himself in making houses in the sand. If they will not ascend to high and manly objects, it would have been better for them always to have remained children.A child is satisfied with his baubles: but they, possessed of capacities which nothing but God can fill,-which were made to be employed about the kingdom of Christ,-remain restless and uneasy with all their toys about them. If I were always to live on earth, and must be confined to its trifling objects,
I solemnly declare that I would rather eternally remain a child.
I GOT IT! There is no “investor” or “third party”. It is only the originator dressed up in costume as “the registrant”. That’s why the foreclosure is continually directed by Wells even thought the attorney says the client is “confidential”. There is no client, just the bank! Especially since these “deals” were shelved.
There is no investor, only the Bank that holds the “assets”. And that’s another registrant of Wells “WFASC 1999 trust (formerly Norwest Asset Securities Corp.)” shows ownership relationship via the SEC.
Do I have it now, Maher?
-----------------------------------------------------------------------------
mortgagelies, on December 4th, 2009 at 11:13 pm Said:
usedkarguy,I am proud of you….very happy. Now show these nay say’ ers and win your case Damn it!
msoliman
expert.witness@live.com
mortgagelies, on December 4th, 2009 at 11:09 pm Said:
Roger;
It’s all about the Bank…an OTS member Federal Savings Bank Brother. You got it…..
When you approached me YOU did not want to hear the message and like others I am then called a Rip Off or nut or one of the two (LOL)
When MSNBC asked their top analyst (whom I know) who is to blame he said…FDIC baby for letting the bank allow this crap to happen in the first place! Who do I call of all the parties interested? FDIC (before MSNBC comments). Who do their attorneys pass me off to – top gun in compliance? And what was one thing that stuck out in the phone call. Four times I am told to “Stop! Calling this a bank Securitization platform!
Let’s see, Wells is Trustee for Citi and B of A is trustee for Wells and B of A is Barclays and …what boat full of crap!FIERRA was dead maybe 36 months when these Wall Street animals created this alternative to BORING GSE (Fannie and Freddie) lending and used Sub Prime to dupe the regulators . . .Or maybe not?
I know when I got out that CWHL “indicted” Chairman is complaining about not owning a Bank . . . it was keeping him out of the game and he could not compete. The same guys who said told me in Boston “Why would we do Sub prime…we shop at Macys while you shop at Marshalls”.
Really!Next the biggest and most prestigious institutional and retail banks are going down in a Rat Vessel of mortgage lending waste! Why?What happened friends is that owning a Federal Savings Banks under the OTS suddenly made Subprime lending a MUST HAVE and huge hit.
The OTS allows NA’s like WaMu and Indy Crack Bank to open a FSB with its own Depositor base (DEPOSITOR -Get it!) in Provo Utah. What Da Funk.I see everyone operating in this incestuous game of high profit and high margins teenage wasteland as Washington finalizes deregulation of the banking system. Help Lord. . . there’s more…but who listening…It’s Spam, its solicitation its , its SICK AND NO ONE WANTS TO LISTEN! Do I have more….Oh yeah!! ! ! !
M.Soliman
Expert.Witness
(Be careful . . . the hatred and nasty comments are coming Waaaaaaaaa! – I can feel it!)
mortgagelies, on December 4th, 2009 at 2:59 am Said:
For those with learning impediments . . .
Counsel for the lender!
mortgagelies, on December 3rd, 2009 at 11:40 pm Said:
CASE STUDY (Actual Case)
For those with learning impediments . . .
1) I made a loan…..
2) I sold a loan…..
3) I bought back the home….
Who were you negotiating a deal with when you were talking a modification or short sale during the time from 2) to 3)?
Note : To pursue objects for which men were sent into the world, to employ the mind on subjects most noble within the reach of its present powers, is certainly to lay the best claims to the honor of manhood.
Comments: Many who pride themselves on being men of honor, deem it manly to neglect religion, and account it weak and womanish to yield to the tendernesses and softnesses of piety.But they turn the tables. With powers capable of manly aims but devoted to childish play, they appear to angels as one would appear to us who at the age of fifty should busy himself in making houses in the sand. If they will not ascend to high and manly objects, it would have been better for them always to have remained children.A child is satisfied with his baubles: but they, possessed of capacities which nothing but God can fill,-which were made to be employed about the kingdom of Christ,-remain restless and uneasy with all their toys about them. If I were always to live on earth, and must be confined to its trifling objects,
I solemnly declare that I would rather eternally remain a child.
Appealette Courts
CAROLYN HOLBERT,
Plaintiff and Appellant,
v.
FREMONT INVESTMENT & LOAN,
Defendant and Respondent.
C058026
(Super. Ct. No. 06AS01940)
Plaintiff contends issues of fact remain on her claims for violation of the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.) (TILA), as amended by the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. §§ 1602(aa) & 1639) (HOEPA), unfair business practices and financial elder abuse stemming from a home loan issued to plaintiff by Fremont.
Plaintiff and Appellant,
v.
FREMONT INVESTMENT & LOAN,
Defendant and Respondent.
C058026
(Super. Ct. No. 06AS01940)
Plaintiff contends issues of fact remain on her claims for violation of the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.) (TILA), as amended by the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. §§ 1602(aa) & 1639) (HOEPA), unfair business practices and financial elder abuse stemming from a home loan issued to plaintiff by Fremont.
We conclude Fremont was not required to comply with HOEPA, which applies when the finance charges imposed on a loan exceed a certain threshold. We conclude two charges imposed on plaintiff, one to pay off a preexisting debt to another lender and another to satisfy a prepayment penalty on a prior home loan, were not finance charges within the meaning of HOEPA.
M.Soliman: Has the plaintiff considered the time period the acceptance was provided to the borrower necessary for determining any bias against the subject. This is logical whereby pricing is seen as abusive by comparison to other borrowers considered more astute and unwilling to accept the same pricing?
We conclude plaintiff has not established a claim against Fremont for unfair business practices. While unfair business practices may include both unlawful and unfair acts, the complaint in this matter alleges only unlawful acts. Furthermore, the alleged unlawful act is a violation of HOEPA, which we conclude did not occur here.
Soliman: Has the plaintiffs counsel considered the intent of the lender for which its lawful business practices were breached. Was there a "delegated Underwriting system in place to the secondary market and was the system breached, as it often is, in order to circumvent the desk top acceptance for ensuring against predatory lending and practices?
Finally, while plaintiff may have a viable claim against her loan broker for financial elder abuse based on various misrepresentations made during the loan process, she failed to link that claim to Fremont, who is as much a victim of the broker’s misrepresentations as plaintiff.
Soliman: the brokers activity's are subject to a agency agreement and specifies a plethora of Do's and Don't subjecting the parties to terminate the broker relationship.Broker business is highly deceptive in origination and calls for the lender to ensure significantly a higher level of safeguards. These protections offered the secondary markets are to ensure against liability for the claims the plaintiff is making here. A derelict quality control and risk mitigation department is easy to determine from published SEC documents with respect to enforceable controls for mitigating risk and to circumvent the indifference made by the registrant in its solicitation of investors.
We therefore affirm the judgment of dismissal.
Mortgage Assistance Program
The mortgage assistance program, off to a slow start, has now helped 650,000 homeowners with trial loan modifications, with average savings of $500 a month. The administration aims to help between 3 million and 4 million over three years, but that is $50 billion that won’t get repaid directly to the Treasury.
Big banks are repaying billions of dollars dumped into their vaults to rescue them. Of the $250 billion that the government initially set aside to spend in direct assistance to banks, it has spent $205 billion and the Treasury is already taking steps to bring that program to an end. The ledger: Banks have paid back $71 billion of the infusions. They have also paid the Treasury nearly $7 billion in dividends.
Big banks are repaying billions of dollars dumped into their vaults to rescue them. Of the $250 billion that the government initially set aside to spend in direct assistance to banks, it has spent $205 billion and the Treasury is already taking steps to bring that program to an end. The ledger: Banks have paid back $71 billion of the infusions. They have also paid the Treasury nearly $7 billion in dividends.
A program announced with fanfare four weeks ago that would funnel money to small banks at low rates to increase small business lending is still being designed. Treasury officials are looking at plans that could cost taxpayers between $10 billion and $50 billion but are encountering reluctance from small banks.
Extending TARP as insurance for banks wouldn’t be a popular move. Conservatives and liberals object to the direct assistance to big banks and insurance conglomerate American International Group. Republicans have called for the program to end and assigning the unused money to debt reduction. Some liberals want the money for jobs programs.
General Motors recently announced it would pay back a $6.7 billion in U.S. government loans by 2011, four years ahead of schedule. That's good said Soliman, " but still demands the $40 billion provided to GM by the government in exchange for a common equity stake.
The potential cost to taxpayers illustrates the dramatic change in TARP’s purpose from the fall of 2008 when President George W. Bush proposed using the entire $700 billion to help banks get rid of toxic mortgage-backed assets. “We expect that much, if not all, of the tax dollars we invest will be paid back,” Bush said on Sept. 24 of last year.
Administration critics say Geithner has not spelled out with clarity how the program will ultimately end.
“Suppose they didn’t renew it; there would be shock,” said Douglas Holtz-Eakin, a former director of the Congressional Budget Office and an economic adviser to Republican John McCain’s 2008 presidential campaign. “There is an implicit expectation that they’ll do something. But there is not a nicely framed expectation of how they will exit.”
If stabilizing the financial sector was TARP’s main goal, increasing lending was the other.
Treasury Department figures released this month show that outstanding loan balances by TARP recipients in September, the latest available data, were 3.8 percent lower than they were in February when the economy was at its worst. Lending by the largest banks that received TARP money declined for the eighth straight month in September.Analysts and Treasury officials attribute the decline to decreased demand from borrowers and continuing skittishness by banks in the face of economic weakness. “TARP giveth, but unemployment taketh away,” said Scott Talbott, chief lobbyist for the Financial Services Roundtable, which represents large banking institutions.ending volume has declined less than it did during the 1991-92 recession, even though this downturn was deeper. But Allison said there is still a widespread perception that banks could be lending more.“We want to see them using their capital for lending as much as they reasonably can,” Allison said. “We want to see banks that took TARP capital, especially the larger banks, paying it back when they are able to.”
Dec 2, 2009
Northern California Residents Win against Foreclosures
expert.witness@live.com
FOR IMMEDIATE RELEASE / CONTENT CONSIDERATION November 24TH 2009/LOS ANGELES, CA / in an office loft work setting only blocks away from the courthouse is a Los Angeles base expert witness serving attorneys who are under fire for not winning cases.
In a recent case , the judge in a Contra Costa Courtroom Judge viewed things in line with Soliman's testimony. A court ruled and awarded the Northern California nurse her home in a decision ruled "final (with prejudice).
A 25 year mortgage banking and sub-prime veteran M.Soliman has a 24 hour work ethic that focuses on wrongful foreclosures. He has emerged as a silent threat to lenders. Soliman is part of a narrow and isolated sector of foreclosure defense business who works as an expert to attorneys who represent borrowers in court. It was all on a dare claims Soliman.
At that time he was working with a law firm serving as an expert for matters investigated by the SEC.The challenge came from another staff member at the law firm Gareeb Pham. She dared him to use his experience to help a homeowner in trouble. That dare and challenge resulted in a foreclosure claim being dismissed totaling over $800,000 .Since then he can show an impressive track record that includes discounts by over $500,000 and cases being dismissed in various unlawful detainer hearings.
Another case was won at trial last month included a $400,000 Wells Fargo obligation. The borrower was in default and facing eviction. Wells Fargo is under significant pressure for its role in "Predatory Lending".
According to Soliman, lender foreclosures can only be resolved, overcome and won in court. The alternative to losing a home in foreclosure is not something all that impossible.The Henderson's of Antioch California were in default on an $864,000 loan by six or more months. For a school teacher, the loan was a stretch. The trustee was instrumental in forgiving $500,000 by reducing the mortgage to $184,000.According to Soliman, each settlement is obtained on its own merits. Another homeowner Syeerta Corbitt struggled withtwo mortgages that totaled nearly one million. The lender was reckless and completely irresponsible for putting theborrower into a financial no win situation. The case was brought to court after months of failed negotiations to convinceAurora of its duty to provide the borrower relief. By definition, predatory loan is considered a pejorative concept by the courts in America. It's a subjective classification for which no specific violation or tort can be found in legal diction. Predatory lending is none the less a verifiable act by a lender who causes a borrower to suffer an extreme
Financial hardship leading to foreclosure. In the matter of "Wells Fargo V Goines" Los Angeles Superior Court the borrower who is a single mom in Los Angeles was awarded the decision. The decision was offered by the court whereby she prevailed at trial. Foreclosure and eviction is now on hold indefinitely with the court's ruling that was issued "Final" by the presiding Judge (Los Angeles, Compton branch Court House). There are other means for coming out of foreclosure and salvaging something of value. Cash settlement offers of $50,000 and $25,000 was provided by separate lenders. The larger award went to a hard working immigrant Soliman will attest to as "absolute lender exploitation". Here, a borrower who never earned a fraction of the Monthly payment needed to meet his $600,000 mortgage obligation was at least returned some of the cash lost to the lender while trying to avoid the inevitable.A similar sad story with a bitter sweet ending was the settlement awarded to Mr. Emmanuel from La Fayette, California.According to Soliman the lender GMAC / Homecomings financially buried the borrower in debt service a 30 year resident and pillar of the community. He lost everything! "He lost his savings, everything he sold to date to make end's meet and now his home" said Soliman.
The $25,000 award for moving and is a small consolation for losing your home. Any money will none the less help to ease the pain. Wins in and out of court are starting to surface and give everyone hope. These cases include borrowers facing a Sheriffs eviction and whereby a "stay" from eviction will allow the borrower another 30 days to pursue a defense when no hope was originally thought available. It's not hard to predict what cases will win in court but negotiating with a lender is a dead end, said Soliman.
Why the courts rule one way then another is due to the level of preparedness. Your story and facts must be precise andto the point. Soliman is basing his arguments for attorneys to bring to court on technical accounting criteria Subjectto the Federal Accounting Standards Board and the court's interpretation of accounting rules.
That really is what I find to be my passion, said Soliman. Challenging Wall Street's ability to take what universities and colleges teach next year's accountants is wrong. Securitizers then rework the rules according to GAAP in order to advance more unlawful acts by banks and lenders.
Soliman can usually sniff out a higher probability of winning cases prior to engaging a borrowers counsel. The Daniels case (HSBC Bank V Danielle's, Sacramento CA County Sup. Court) in Napa is a good case in point. Here the trustees documents and recorded instruments were all out of sync and failed to meet the proper chronological order for date sensitive materials. According to Soliman, what's does the Judge consider before ruling. It's hard to say but when the lender say's one thing and the recorded information is off it say's another?
We will keep you posted.
MSoliman Tele 213-627-2324
Maher Soliman is an expert witness who testifies in these matters concerning securitization and federal banking rules violations
The expert disclosure provisions of Rule 26 must be considered, however vague they appear. This is brought forth to counsel with respect to full acknowledgment and understanding for the claim f material violations.
The requirements demand that counsel be alert whereby parties must disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A).
If such a witness either is retained or specially employed to provide expert testimony, or if the witness’s job duties as a party’s employee regularly involve giving expert testimony, the disclosing party also must provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B). Whether and to what extent the report requirement applies to a non-retained witness who also happens to qualify as an expert on some topic, a so-called “hybrid” witness is not as clear.
My suggestion is the 1993 Advisory Committee Notes to Rule 26 for some if not much guidance. The references describe in some manner the report requirement of Rule 26 and its proper application to the mater. Specifically, it solely “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.” Id. advisory committee’s notes (subdivision (a)(2)).
Thus, a “treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” Id. Our understanding are of little concern for r the topics on which a non-retained witness who otherwise could provide expert opinion testimony (such as a treating physician), but who did not prepare a Rule 26 report, may testify at trial.
In Anatomy of a Witness List Hon. Michael L. Stern writes that "each witness should tell the next part of your story and move your case forward."The order in which witnesses are called at trial can make or break a case. The process of preparing a witness list, including careful consideration of who to call, when and why, may forecast a verdict even before counsel step into the courtroom for trial. It is vital to determine which witnesses will provide maximum impact at different point’s into a trial.
Each (expert) witness must be evaluated as a potential "opener," "closer," or "sleeper." Some witnesses can persuasively establish or refute liability on damages issues.
Others are better for introduction of documentary or other exhibits. Sometimes witnesses must be called adversely for essential information or taking the edge off problem areas. Above all, calling any witnesses requires strategic thinking, not simply conjuring up an arbitrary list of persons with potential testimony.
The testimony is unusual in that Witness to the events leading to a breach of duty was in fact witnessed and considered something very strange out of normal business practices. Something occurred with respect to the subject of the defendants claims against “SunTrust” where the lender appears to have undertook the own pursuit to cure the problem.
There was also a need for SunTrust to make a series of deceptive and material violations to fair business practices, generally accepted accounting rules and both State and Federal Civil codes. If not, no other explanations are available for the fraudulent second mortgage used to replace the prior federal Credit Union Loan. The events leading up to July 2007 are now coming to light as for arguments supporting why Sun Trust did not seek to provide a more honest assessment of the facts and issues involving the obligation the Olehy received on various separate occasions.
LENDER & SERVICER'S likely in serious trouble
Bankruptcy Courts hold Banks to strict proof concerning the location of the original Note and Trust Deed and requiring the same be moved into evidence (or strictly accounted or) prior to proceeding with a routine Lift the Stay Motion. This includes the entire LENDER, MERS, SERVICER triad which is likely in serious trouble.
The notion of not knowing of a notes whereabouts is answered with the transformation of the securities.and who holds the extinguished Trust Deed and/or the Note.
If this question gets redundant for Lift the Stay Motions and in other ancillary court proceedings, watch for an unraveling of MERS Nominee system.
The notion of not knowing of a notes whereabouts is answered with the transformation of the securities.and who holds the extinguished Trust Deed and/or the Note.
If this question gets redundant for Lift the Stay Motions and in other ancillary court proceedings, watch for an unraveling of MERS Nominee system.
Dec 1, 2009
SECURITIZATION 101 FOR DUMMY'S
In 1970 you have the first securitization introduced on U.S. mortgage markets and thus mortgage-backed securities captured an instant market. The market for these hybrids was boosted by the government agencies that endorsed the markets application and uses for the securities.So, securitization is a relatively new form of investment banking and alternative approach to traditional lending. Securitization was developed for the mortgage market after proving it s efficiency applied initially applied to a car loans. Securitization issues were backed by an increasingly diverse and ever-expanding array of non mortgage assets, including corporate assets such as lease receivables and bank assets such as payments associated with corporate loans. From a perspective of securitizing assets securitization it is by definition a process in which assets are refinanced through issuing securities. The securities are sold to investors from a bankruptcy-remote special purpose vehicle (SPV).Now, I am not sure if securitization remains light years away from perfection or its just easy to abuse after time and experience set in. But it remains is a valuable liquidity technique developed to finance a pool of assets.The assets are otherwise non-tradable and therefore less liquid than a bond. Asset securitization issues are dependent on the repayment which depends only or primarily on the assets and cash flows pledged as collateral. Therefore one could say that it is not solely dependent on the overall financial strengths of the originator (sponsor or parent company). The designated SPV will facilitate the securitization of the assets. And ensure that it remains positioned as a legitimate legal entity established for bankruptcy purposes as separate from the seller.Choudhry and Fabozzi authored the bible for securitization and in it note how the capital markets in which these securities are issued and traded. The securities and derivatives are categorized into three distinct classes: asset-backed securities (ABS), mortgage-backed securities (MBS), and collateralized debt obligations (CDO). As a rule of thumb, securitization issues backed by mortgages are called MBS, and securitization issues backed by debt obligations are called CDO. Securitization issues backed by consumer-backed products - car loans, consumer loans and credit cards, among others - are called ABS (see Moody’s Investors Service, 2002). Ultimately, all debt obligations in a CDO portfolio can be classified as bonds or loans, although both types of debt come in various forms with their own unique characteristics. Generally speaking, bonds are fixed income, that trade in a fairly liquid environment with various types of debt obligations issued by an entity seeking external capital in debt markets, be it a sovereign, corporate or financial institution. Loans are less generally less liquid and therefore less trade worthy making them ideal for securitization. Asset backed investments are often held by a smaller group of investors (lenders) than is the case with bonds (see Fitch Ratings, 2004). FASB issues FSP on disclosures about transfers of financial assets and interests in variable interest entities
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Choudhry and Fabozzi
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