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Securitization Audits
Changes in mortgage practices since 2000 created a number of new issues that need to be examined on loans facing foreclosure. The problem of securitization presents exceptions to traditional portfolio lending that require understanding the complex financial structures of mortgage backed securities ("MBS"). In the MBS process mortgages are financially transformed into products and sold multiple times for profit before being sliced up and credit enhanced, then finally sold to investor trusts.
Originating lenders often retain the lucrative servicing rights after being paid in full on the initial-original mortgage loans at or around the time of loan origination. They have the originals but do not disclose to the court these have been sold, the sales and parties to whom they were sold. Nor do they disclose that they have been paid in full on the originals presented in court upon which they base the foreclosure.
In a surprising number of Trust identified cases we find no written evidence of the loan being included in the pool or in the mortgage loan purchase agreement or schedule. In cases where the Trust appears to be bringing the foreclosure, the case is often based on the initial originals or on SEC filed Pooling and Servicing Agreements. On closer examination we find loan servicers again attempting to foreclose on behalf of Trusts who cannot demonstrate legal ownership. Where we do find Trust ownership the sworn filings denote specific transfers, sales, recordation, handling, location of the properly transferred endorsed current owner's originals and more. But when these facts are not presented as evidence in court the foreclosure goes unchallenged and the property lost.
Judicial process vs. non-judicial states. In the judicial process, lawsuits have to be filed but in non-judicial process states foreclosures can take place without lawsuits and unlawful detainers or evictions commonly take place in what the evidence clearly reveals are wrongful foreclosures.
Misrepresentation of MERS and Trustee transfers. Evidentiary findings clearly reveal misrepresentation of Mortgage Electronic Registration System (MERS) and collusion or complicity of involvement among related parties to Trustee assignments wherein the supporting documentation to empower their actions is rife with genuine, serious and material defects. Yet, unchallenged foreclosure takes place.
Loan servicers win, borrowers lose. The loan servicers winning these foreclosures and directing the properties into the Real Estate Owned portfolios of the lenders who own the servicing entities (Bank of America, Wells Fargo, Chase, etceteras) only have a miniscule financial interest in the loan represented by their loan servicing fees. Usually less than 1/2 of 1% which does not give them the constitutional or prudential standing to foreclose, yet they do because the evidence to challenge their allegations and claims in the property go uncontested with expert third party evidence to the contrary.
Attorneys are precluded at law from being considered experts in their own cases. The borrower/debtor has to bring evidence in to prove genuine questions exist on material issues and because of the undisputable nature of the evidence, persuade the judge there is the likelihood of proving the allegations and winning a verdict in their favor.
Against lender documentation and claims your burden of proof to the contrary has to be strong enough and meet the rules of evidence to enable you to demand discovery and seek evidentiary hearings on the merits. At that point your evidentiary findings, facts and documentation must explain the process of your loan securitization that took place, present undisputable facts and documentation, expert declarations and testimony to rebut the lender's documents and claims. Your expert's reporting has to not only explain the securitization process, economics of it, detailed chronology of sales, events and parties in the chain of securitization, a persuasive argument must be presented to shift the burden on the lender to overcome the evidence.
The type of report you order depends on what you intend to do and accomplish with it. In the hearing phase before trial, it may be enough for the expert to base opinions on information, belief and familiarity with the securitization transactions in order to get a hearing on the merits and alert the Judge to the material issues. For trial, where the Judge is Trier of Fact and typically not a jury, we can provide meticulous reference to facts, issues and documentation to meet the burden and support the evidence. Due to their nature, these findings can also support allegations of misrepresentation, intrinsic and extrinsic fraud, real party in interest, standing, necessary and indispensible parties, discovery and more.
FPG-USA specializes in this securitization mortgage analysis. Direct inquiries to info@fpg-usa.com.