IndyMac INDX Mortgage Loan Trust 2006-AR13Sponsor, seller and servicer IndyMac INDX Mortgage Loan Trust 2006-AR13issuing entity
By M.Soliman
Foreclosure sales are typically public sales whereby a purchaser bids in excess of the lender's lien. Frequently the sale is not to a third party. This is because of the difficulty of determining the exact status of title to the property. One prohibiting factor as a barrier to liquidation by a lender is the requirement that the purchaser pay for the property in cash or by cashier's check.
A foreclosing lender should purchase the property from the trustee or referee for an amount equal to the principal amount outstanding under the loan, accrued and unpaid interest and the expenses of foreclosure. Thereafter, the lender will assume the burden of ownership, including obtaining hazard insurance and making repairs at its own expense necessary to render the property suitable for sale. The lender will commonly obtain the services of a real estate broker and pay the broker's commission in connection with the sale of the property. Depending upon market conditions, the ultimate proceeds of the sale of the property may not equal the lender’s investment in the property.
I know firsthand from experience attending trustees meeting of creditors how the Courts have imposed general equitable principles upon foreclosure. Its intention is assumed by designed to mitigate the legal consequences to the borrower of the borrower's defaults under the loan documents. The issue of whether federal or state constitutional provisions reflecting due process concerns for fair notice have forced the courts to require that borrowers under deeds of trust receive notice longer than that prescribed by statute.
Many of these cases have found that the sale by a trustee under a deed of trust does not involve sufficient state action to afford constitutional protection to the borrower. In other words the Courts have upheld the notice provisions as being reasonable.
When the beneficiary under a junior mortgage or deed of trust cures the default and reinstates or redeems by paying the full amount of the senior mortgage or deed of trust, the amount paid by the beneficiary becomes a part of the indebtedness secured by the junior mortgage or deed of trust. Subject to the California Civil Code under California law, the "Notice of Default (NOD)" commences subsequent to a notice being delivered to the borrowers. Thereafter a private sale of the real property securing a loan is anticipated to take place sometime 90 days thereafter. Before a foreclosure sale is actually conducted, the borrower may "cure" the default and thereby rescind the NOD.
On or about March 31 2006 the loan subject loan secured by real property located at 617 W 97th Street, Los Angeles, CA 90044 was settled and funded by a wire through the Federal Reserve causing funds to be deposited with the settlement agent through Investors title Company. Through the life of the loan and prior to January 2008, the borrowers herein maintained a “Paid as Agreed” account status with the lender’s servicing agent.
The lender and servicing agent are considered to be both one in the same according to public information published by the registrant for an SEC indentured trust investment. A dispute with the servicing agent and borrowers developed thereafter concerning the amount necessary to cure the NOD. Upon the servicing agents alleged determination of 60 days delinquency the borrowers account was ruled to be in “default” and subject to commencing a foreclosure action. A servicing function is to collect payments due from current borrowers both and those suffering delinquencies. A security holder is entitled to enforce a foreclosure sale afforded to the security after determining a default which is typically after 60 days delinquency. A delinquent borrower condition allows a lender to foreclose assuming it has met the states rules and procedures code. Otherwise, an improper application of the civil code in a lenders recovery effort can come under a courts scrutiny which can delay a sale for months and even years.
Upon the borrowers hitting a 60 days delinquency mark the servicing agent was obligated to assure the borrower’s right to “cure” the “arrearage”. California real property law provides for extra-judicial foreclosure of a Deed of Trust (a Deed of Trust is in effect a mortgage with a power of sale). Lenders enjoy an efficient process from start to finish totaling four months. Under California Civil Code ("CC") §§2924-2924(k) the statute offers broad framework for the oversight of non-judicial foreclosure sales. The statutory procedure maintains in a default by the borrower, the lender may declare a default. Upon such notice the lender may proceed with a non-judicial foreclosure sale. Under CCC§2924 / 2923.5 a lender must provide the delinquency with a meaningful workout option under recently passed legislation. From the 60 days delinquency mark and thereafter the servicing records offered by the lender are uncertain as to the servicing agent’s compliance with state civil code. Therefore it is unknown what rights the lender maintains in a foreclosure and trustees sale of the subject property for any alleged delinquency and upon denying the borrowers fundamental rights prior to conducting a Trustee’s sale.
(1) A right to cure the delinquent amount
(2) The right to a notice of intent to foreclose
(3) A right to a meaningful offer to a workout
A claim brought by the borrowers stems from plaintiff allegations made in a wrongful foreclosure claim under California’s Non-Judicial Deed of Trust Foreclosure Process. The matter will point out the necessity for a lender to pay attention. Maintaining timeliness is not just a smart idea but it ensures both appropriate and spontaneous intelligent approaches to managing delinquency. Where the courts have made known their tendencies to not see the lender as a fiduciary the servicing agent none the less maintains a higher level of responsibility to the borrower. The current administration in Washington has made it very clear through the office of the Secretary of the treasury the same is not true for the servicing agent.
Violations align with the lenders servicers’ refusal of the borrower’s tender of "cure" from the time of the NOD. Therein is a logical judicial argument for plaintiffs to bring a wrongful foreclosure lawsuit. Its mind boggling to say the least; where servicer and lenders may better be served to avoid the legal risks and costs that can arise from this ongoing and redundant predicament.
M.Soliman is an expert witness based in Los Angeles, California. Soliman has served as an analyst to the subprime sector and has personally underwritten, serviced and sold over one billion in closed whole loan transactions.
From 2005 through 2007, lenders held out as primarily a conduit of prime quality mortgage loans, qualitatively different from "A" credit competitors who engaged primarily in riskier lending. This false characterization hid from homeowners and investors the truth in an effort to increase market share, while engaged in an unprecedented expansion of its underwriting guidelines. - Management
Subscribe to:
Post Comments (Atom)
Followers
ASSET BACKED SECURITIZATION MEANS NO NOTE
Asset backed securitization is magic come to life. It is the transformation of a note into pieces. The pieces act like a waterfall of cash flow. Its distributed as investment, structured finance, accrual, accretion and cash flows set forth into many classes of offerings.
Take a dollar bill and slice it up and distribute it to your friends. Piece by piece. Then ask your friends to go cash it. The US Treasury will accept only greater than 51% of any legal tender to make the payer (government) honor the bill. Get it...no?
Try this- The bill you cut up...that bill was a promissory note that went bad. Now if you’re a (GE) stock holder and lose on the stock you purchased you won’t get far attacking General Electric. You cannot seize company assets now can you? The assets are still GE assets and you lose.
What’s your point? The note you gave the lender, the lender did own. But lender sliced it up and it was distributed amongst many investors. The investors lose as the certificates they hold are only valuable as the whole and not the pieces. It’s worthless. They (investors) have an abundance of insurance they can attack related to the security and that's it.
Hey investor - are you really going to foreclosure on a 17.8% share of a borrower’s home?
Stops it! Maher, Nooooo! - You’re talking out both sides of your mouth. You said in the above example GE owns the assets and you cannot attack a public company because of a bad stock deal. So the lender owns the note after all and they can foreclose... Correct? Yes mischief makers I did say that “about the GE stock example”, correct! But these registrants offer pass through certificates. They are portioned out and "passed through" from the lenders beneficial interest to the investors. You want me to be any clearer here. Then join me and let's scream from the highest mountain”
"....HEY INVESTORS....GET IT TOGETHER AND GO COLLECT ALL YOU’RE CERTIFICATES AND PIECE THEM TOGETHER . . . And NOW you can foreclose on me!” You lender tore the LEGAL "TENDER' into pieces and the note is lost forever to the securitization they created.
I walked away from structured finance and private placement fees because of this argument. No attorney; accountant or lewd Cop could ever overcome this argument for denying you your home on a securitization gone badly?
So who wants to call me for an audit? Need a modification? I cannot and never will do an audit or modification! If others do, then kiss them for me. What are you auditing . . . Something the lender does not own? Want to file bankruptcy - careful. Are you bringing a lender into court and re-establishing them as a creditor?
They are not a creditor and that's why BK Trustees want no part of the bankruptcy rip-off report. Where’s the modification that California said no more attorneys or consultants can help out on? THERE ARE NO MODIFICATIONS. THERE IS NO MODIFICATION OR SHORT SALE IF YOU’RE WAITING FOR! GOT IT.
You note is gone and that is that. Fight the security as they cannot evidence the note. What if the “The lender came to court with the note...! So.....what? The lender was not a security player or they left the loan out of a securities offering. No problems counsel, you win.
Oh wait a minute! What’s that? You booked the transaction as a sale under FAS 140-3 instead of debt on your balance sheet. That is what we call securities fraud even under FAS revisions 140-3 and for servicing arrangements under FAS115.Its your home and an impostor, Realtor, Recovery firm, Attorney . . . Someone is trying to steal it from you.
M.Soliman
Expert.witness@live.com
According to the treasury department
By Maher Soliman
According to the treasury department, millions of additional homeowners did make a big mistake: they took advantage of “liar loans” and other too-good-to-be-true deals to buy homes they couldn’t afford. Many are still in those homes, hanging on for dear life. Many others have already faced foreclosure proceedings.
What the treasury is figuring out is what we told you as a client over the years. Asset backed securitization is magic come to life. It is the transformation of a note into pieces. The pieces act like a waterfall of cash flow. The fractionalized cash proceeds are derived from the obligation whereby you are the maker of the note. Cash proceeds are distributed as independent performing investments borne of, structured finance including accrual, zero based accretion and cash flows set forth into many rated classes of offerings.
Asset backed securitizations means no note as it was marked “paid in full”. Take this example for a better illustration. Take a dollar bill and slice it up into even pieces and then distribute it to your friends. Now ask your friends to go cash each individual portion of the dollar. The US Treasury will accept only greater than 51% of any legal tender as the payer (government) and therefore has no obligation to honor the bill. Seen in another light, the bill your lender cut up is the promissory note in a high stakes game that went wrong.
I’ve seen estimates suggesting as many as one out of every six homeowners has a troubled mortgage. This is an enormous social problem. It is also a continuing economic problem. In the year since the crisis began, the world’s financial institutions have written down around $500 billion worth of mortgage-backed securities. These financial institutions have written down the securities used to replace the notes, they did not write down the notes whereby the notes are the securities. Unless something is done to stem the rapid decline of housing values, these institutions are likely to write down an additional $1 trillion to $1.5 trillion.
If you’re a GE stock holder stock holder and lose on the stock trade you purchased in 2005 and wrote down in 2009, you won’t get far attacking General Electric and suing them
You cannot seize company assets with equity stock. The assets are still GE assets and you lose. The note you gave the lender is not whole and now is in pieces. The investors lose as the certificates they hold are only valuable as the whole and not the pieces. It’s worthless. They (investors) have an abundance of over collateralization insurance they can attack related to the security and that's it. So ask yourself, are you really going to foreclosure on a 17.8% share of a borrower’s home?
Politicians are talking out both sides of your mouth. Another way to look at this is as follows. You said in the above example GE owns the assets and you cannot attack a public company because of a bad stock deal. So the lender owns the note after all and they can foreclose?
Yes I did say that “about the GE stock example”, correct! But these registrants offer pass through certificates. They are portioned out and "passed through" from the lenders beneficial interest to the investors. Hey investors get it together and go collect all you’re certificates and piece them together. And now you can foreclose on the collateral, maybe. But by tearing the legal "tender' into pieces and the note is lost forever to the securitization they created. I walked away from structured finance and private placement fees because of this argument.
So how many people paid for an audit and what is it they were to have audited. There is no loan modification either. NLS never agreed to do an audit or modification! What are you auditing anyway, something the lender does not own? Want to file bankruptcy – be careful. Are you bringing a lender into court and re-establishing them as a creditor! They are not a creditor and that's why BK Trustees want no part of the bankruptcy rip-off report. Where’s the modification that California said no more attorneys or consultants can help out on? There are no modifications. There is no modification or short sale if you’re waiting for!
You note is gone and that is that. Fight the offensive for the security (mortgage or deed) as they cannot evidence the note. What if the “lender came to court with the note.” Where a mortgage or asset backed securitizers left the loan out of an offering you establish for the lender a new set of issues.
If the lender booked the transaction as a sale under FAS 140-3 instead of debt on your balance sheet you make a claim of securities fraud. It’s a fact even under FAS revisions 140-3 and for servicing arrangements under FAS115.It’s your home and an impostor Realtor, Recovery firm or Attorney is trying to steal it from you. This is why we immediately shifted this case over to attorneys early last year and through 2009.
If you’re not listening to the immoral minority then you’re still with us and chances are you have not lost that home and never will.
M.Soliman
Expert.witness@live.com
SEC Where are you?
REFORM
The market crisis and the repeated calls to rewrite
the regulatory landscape make projecting the future
direction of SEC enforcement hazardous. Some of
the calls for reform are rooted in the current market crisis.
Others stem from scandals that have tarnished the
reputation of the SEC. An agency that until recently
was largely unknown on Main Street U.S.A. is now unfortunatelybeing recognized, not for its past successes,
but for its failure to protect investors — its fundamental
mission.
Examination of the enforcement program begins
with a brief look at recent statistics. Last year, the SEC
filed 671 cases, a record number.
1 This is the first increasein recent years. While this is significant, manycritics note that the number is inflated by defaults andsimilar actions. Other critics point to recently publishedNERA statistics which demonstrate that the number ofcases settled in 2008 declined to one of the lowest levels
in years
2 In the first quarter of 2009, however, settlements
have increased compared to the prior quarter
and to the same quarter one year earlier.
3 Other statistics further cloud the view. A recent studypublished by Syracuse University based on Departmentof Justice (‘‘DOJ’’ or ‘‘the Department’’) data found thatthe number of securities fraud prosecutions declined
significantly in 2008.
4 At the same time, the FBI reportsthat it is overburdened, with 530 corporate fraud investigationsunderway. These cases focus on financialfraud and insider trading.
5 While the vitality of SEC enforcementis not measured by the number of criminalcases brought, since those are exclusively in the purviewof the Department of Justice, the numbers raise
significant questions. This is particularly true since the
SEC and the Department closely coordinate and often
conduct parallel investigations and actions.Collectively, these statistics raise more questionsthan they answer.
No clear trend emerges from them.On the one hand, they clearly do not depict a vibrant enforcementprogram. At the same time, they also do notsuggest one that is dysfunctional. The lack of a clear
trend, however, might suggest a program in search of
direction, supporting calls for reform.
Beyond the statistics, the current market crisis has
spawned repeated calls for the reform of securities
regulation as well as banking and other financial regulators.
6 Many have criticized the SEC’s performance
during the current crisis as lackluster, at best. A report
from the SEC’s Inspector General, for instance, is
highly critical of the agency’s performance during the
demise of Bear Stearns.
7 That same report also criticizedthe agency’s now-defunct program of voluntarysupervision over investment bak holding companies.
8When the SEC did react to the market crisis, not only
was it criticized, but perhaps worse, the agency secondguessed
itself. In September 2008, the Commission initiated
a ban on short trading in the shares of certain financial
institutions
9 Regulators around the globe institutedsimilar bans which lasted far longer than themodest few week embargo imposed by the SEC.
10 Yetafter the SEC’s ban ended, then-Chairman Cox claimed
it was the biggest mistake of his tenure, undertaken
only because of pressure from the Secretary of the
Treasury and the Chairman of the Federal Reserve.
11Attempting to shift blame for controversial actions suggests
a rudderless agency, not a strong regulator.Scandals in the enforcement division belie any notionthat difficulties at the agency stem solely from a temporarylack of leadership. The Pequot Capital debacle isthe scandal that will not die.
The market crisis and the repeated calls to rewrite
the regulatory landscape make projecting the future
direction of SEC enforcement hazardous. Some of
the calls for reform are rooted in the current market crisis.
Others stem from scandals that have tarnished the
reputation of the SEC. An agency that until recently
was largely unknown on Main Street U.S.A. is now unfortunatelybeing recognized, not for its past successes,
but for its failure to protect investors — its fundamental
mission.
Examination of the enforcement program begins
with a brief look at recent statistics. Last year, the SEC
filed 671 cases, a record number.
1 This is the first increasein recent years. While this is significant, manycritics note that the number is inflated by defaults andsimilar actions. Other critics point to recently publishedNERA statistics which demonstrate that the number ofcases settled in 2008 declined to one of the lowest levels
in years
2 In the first quarter of 2009, however, settlements
have increased compared to the prior quarter
and to the same quarter one year earlier.
3 Other statistics further cloud the view. A recent studypublished by Syracuse University based on Departmentof Justice (‘‘DOJ’’ or ‘‘the Department’’) data found thatthe number of securities fraud prosecutions declined
significantly in 2008.
4 At the same time, the FBI reportsthat it is overburdened, with 530 corporate fraud investigationsunderway. These cases focus on financialfraud and insider trading.
5 While the vitality of SEC enforcementis not measured by the number of criminalcases brought, since those are exclusively in the purviewof the Department of Justice, the numbers raise
significant questions. This is particularly true since the
SEC and the Department closely coordinate and often
conduct parallel investigations and actions.Collectively, these statistics raise more questionsthan they answer.
No clear trend emerges from them.On the one hand, they clearly do not depict a vibrant enforcementprogram. At the same time, they also do notsuggest one that is dysfunctional. The lack of a clear
trend, however, might suggest a program in search of
direction, supporting calls for reform.
Beyond the statistics, the current market crisis has
spawned repeated calls for the reform of securities
regulation as well as banking and other financial regulators.
6 Many have criticized the SEC’s performance
during the current crisis as lackluster, at best. A report
from the SEC’s Inspector General, for instance, is
highly critical of the agency’s performance during the
demise of Bear Stearns.
7 That same report also criticizedthe agency’s now-defunct program of voluntarysupervision over investment bak holding companies.
8When the SEC did react to the market crisis, not only
was it criticized, but perhaps worse, the agency secondguessed
itself. In September 2008, the Commission initiated
a ban on short trading in the shares of certain financial
institutions
9 Regulators around the globe institutedsimilar bans which lasted far longer than themodest few week embargo imposed by the SEC.
10 Yetafter the SEC’s ban ended, then-Chairman Cox claimed
it was the biggest mistake of his tenure, undertaken
only because of pressure from the Secretary of the
Treasury and the Chairman of the Federal Reserve.
11Attempting to shift blame for controversial actions suggests
a rudderless agency, not a strong regulator.Scandals in the enforcement division belie any notionthat difficulties at the agency stem solely from a temporarylack of leadership. The Pequot Capital debacle isthe scandal that will not die.
Posts
California real property law provides for extra-judicial foreclosure
A claim brought by the borrowers stems from plaintiff allegations made in a wrongful foreclosure claim under California’s Non-Judicial Deed of Trust Foreclosure Process.
The matter will point out the necessity for a lender to pay attention. Maintaining timeliness is not just a smart idea but it ensures both appropriate and spontaneous intelligent approaches to managing delinquency. Where the courts have made known their tendencies to not see the lender as a fiduciary the servicing agent none the less maintains a higher level of responsibility to the borrower. The current administration in Washington has made it very clear through the office of the Secretary of the treasury the same is not true for the servicing agent.
The matter will point out the necessity for a lender to pay attention. Maintaining timeliness is not just a smart idea but it ensures both appropriate and spontaneous intelligent approaches to managing delinquency. Where the courts have made known their tendencies to not see the lender as a fiduciary the servicing agent none the less maintains a higher level of responsibility to the borrower. The current administration in Washington has made it very clear through the office of the Secretary of the treasury the same is not true for the servicing agent.
Whats up with Foreclosures
The Treasury Department pumped $125 billion into the country’s largest financial institutions, and it promised another $125 billion — more, if necessary — to recapitalize regional and community banks.They are vital steps and the global recapitalization of the banking system is the reason. But the job isn’t done and nothing seems to have trickled down to the homeowners....why?Wake up America -
Modifications do not exist. And the capital advances are to supplement the value for the assets these banks are stealing back for securitization deals gone wrong....very very wrong.California said no more modification help . . . maybe they could have been a little more honest?
They do not exist.Portraying foreclosure consultants as Crooks Thieves and Shakespearean web sites are a little bit of an obstruction of justice. Even the bad ones made phone calls and talked to parties who "were not authorized to discuss the loan." FAS 140-3 friends. THAT IS THE VIOLATION NEEDED TO ARGUE RELIEF IN COURT MORE THAN ANY OTHER ARGUMENT. That's testimony to an "expert witness” to provide counsel AND I will go out, interview and collect the information.We need to realize - there is no other solutions to a securities deal gone bad. We played by the rules and lost in better times. Now are faced with this?
M.Soliman
expert.witness@live.com
No comments:
Post a Comment