Discovery you can’t afford to miss: the SEC!

(OP-ED) — The opinions expressed herein reflect those of the author and should not necessarily be construed as legal advice; however, the material has been vetted by an attorney who loves the thought process behind what is expressed here.

While everyone is getting the “rope-a-dope” from the banks and their mortgage loan servicers, no one’s looking to the enforcement arm of Wall Street … the revolving door into the United States Securities and Exchange Commission (“USSEC”). The author will abbreviate this agency, who is supposed to enforce violations of securities laws; however, seemingly, apparently hasn’t been doing so to the extent that We the People need them to.

The author of this post held off posting this article for the sake of clarification, insomuch that jumping the gun and sending the readers of this post on a wild goose chase for nothing would have been totally discrediting and thus, non-productive. Now that clarification has been achieved, it’s no holds barred.

The author devised a set of discovery, which was then turned into more productive aspects of a means to an end. That discovery revolves around the USSEC, who has the goods you’re looking for if you happen to be facing a REMIC trust, which most of you are since most of your loans were securitized.

This concept and thought process involves a two-pronged attack on the USSEC. Here’s step one:

If you’ll visit sec.gov, you’ll notice the search box in the upper, right-hand corner of the website.

Type in ONLY the REMIC trust’s “Series Number” (for example 2004-NC3, which I will reference in this post as the example). Do NOT type in the entire trust’s name and gobbledygook as you’ll end up with non-descript stuff you can’t use. Once the actual REMIC’s name appears below the search box, make a note of the “CIK” number by whatever means possible because this information will become part of your discovery request.

Rule #1: You cannot serve discovery on a non-party to a lawsuit!

Don’t even try it. You will be wasting your time and money. Instead, the attorney the author spoke with zeroed in on the fact that if you make the USSEC a third-party defendant in your case, the courts will most likely throw them out (dismiss them from your suit) at the first opportunity, much to the objections of the mortgage loan servicer (who’s bring the foreclosure against you trying to reimburse its own coffers), who will then figure out what you’re trying to get at. Thus, the attorney suggests getting a subpoena issued straightaway against the USSEC, asking for certified copies of information directly related to the REMIC trust you’re dealing with. Here’s where the concept attempts to get results:

Submit a complete and true certified copy of the 424(b)(5) Prospectus for 2004-NC3, filed with the USSEC on April 12, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on May 3, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of April 16, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on June 2, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of May 25, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on July 1, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of June 25, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on August 3, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of July 26, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on August 27, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of August 25, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on September 28, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of September 27, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on November 1, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of October 25, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on November 29, 2004, as shown on the Edgar Entity Landing Page with a Reporting Date of November 26, 2004.

Submit a complete and true certified copy of the Form 8-K, also known as Current Report for 2004-NC3, filed with the USSEC on January 3, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of December 27, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of November 26, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of October 25, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of August 25, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of September 27, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of July 26, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of June 25, 2004.

Submit a complete and true certified copy of the Form 8-K/A, also known as Current Report – amendment, and all amendments thereto for 2004-NC3, filed with the USSEC on January 12, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of May 25, 2004.

Submit a complete and true certified copy of the SEC Form 15-15D, known as Suspension of Duty to Report [Section 13 and 15(d)] of 2004-NC3, filed with the USSEC on January 26, 2005.  

Submit a complete and true certified copy of the 10-K, known as Annual Report [Section 13 and 15(d), not S-K Item 405] of 2004-NC3, filed with the USSEC on March 31, 2005, as shown on the Edgar Entity Landing Page with a Reporting Date of March 7, 2005.

EXPLANATION OF WHAT’S BEEN REQUESTED THUS FAR …

From the pull-down menu at sec.gov (when you’ve retrieved the REMIC’s files), print and save the list of all of the documents that have been filed with the USSEC on that particular REMIC. This should not be considered as over broad and burdensome to the USSEC since all of these files are contained within the USSEC’s database. They can easily be retrieved and the fee for sending it all to you is $4.00 in postage.

In this particular example, the pull-down menu, which was printed out in full, contained 19 documents, all of which became part of the request for production under subpoena.

You can either ask for all of these documents (that are contained within the USSEC’s files on the REMIC, which in this case was 19) outside of a lawsuit if you wish to get an advance look-see at everything. That’s an option if you don’t want to subpoena the records from the USSEC. However, there’s more to the story than what we’ve covered so far. This is where the subpoena comes in with the double whammy. A lot depends on the timing of the request and whether you’re attacking the servicer ahead of the foreclosure. You’ll want to depose someone with direct, first-hand knowledge of the REMIC you’re going after.

And here’s step two:

Get the court clerk to issue a subpoena to the USSEC to get them to produce someone with relevant knowledge of the documents that can verify and validate any violations of the governing regulations of the REMIC trust. (Again, this is framed as a suggestion and not given as legal advice!)

Inside of the subpoena, you can demand the USSEC check ALL of its records and produce whatever it has, in certified form, for the following (and this is just a sample):

Submit complete and true certified copies, if any you have in your possession or control, of all notes, memoranda and agreements for any certificateholder settlements known to the USSEC for  2004-NC3. 

Submit complete and true certified copies, if any you have in your possession or control, of all known litigation filed by any certificateholder, known to the USSEC for  2004-NC3. 

Submit complete and true certified copies, if any you have in your possession or control, of all known USSEC-related prosecutorial actions taken against 2004-NC3. 

Submit complete and true certified copies, if any you have in your possession or control, of the mortgage loan documents which name the Plaintiffs as the Borrowers that demonstrated that the trustee of 2004-NC3 received the documents described on Page S-75 of the 2004-NC3’s 424(b)(5) Prospectus according to the stated governing regulations. 

Submit a complete and true certified copy, if any you have in your possession or control, of any document that demonstrates the negotiation or transfer of the Plaintiff’s mortgage loan and all related documents therein, which specifically identify the date these mortgage loan documents, including all assignments of mortgage (or deed of trust) thereto, that were documented as part of the transfer from the Depositor to the REMIC trust by the trust’s Cut-Off Date.

You’ll want to review all of the trust’s “FILED” documents first, because the Amendments inside of those REMICs may reveal changes in the number of certificate holders receiving the 8-K’s and 10-K’s and may further reveal the actual “condition” of the REMIC before and after it closed. You’ll need this information for the next step.

Rule #2: You cannot depose a non-party to the suit without relevant cause!

This is a great way to get the mortgage loan servicer’s attention because if the REMIC trust settled out with all of the certificate holders, then the mortgage loan servicer, the real party bringing the foreclosure, has no standing because it can’t prove concrete injury-in-fact required under Spokeo v. Robins. Thus, it has no standing to pursue a foreclosure. And it’s going to fight you tooth and nail to keep its position in the suit because it wants to steal your property.

Don’t expect the mortgage loan servicer and its attorneys to sit idly by while you depose someone with knowledge of the particular REMIC trust. They’ll have their attorneys in the deposition, so you’ll have to craft your questions in such a way so as to expose the bad behavior on the part of the servicer’s employees when it comes to having the USSEC deponent examine the recorded assignment(s), specifically for:

1. Who prepared the assignment? (Was it the law firm or the servicer’s employees?)
2. Who executed the assignment? (Was it someone who wasn’t really who they said they were?)
3. When was the assignment executed? (Well after the Cut-Off Date of the REMIC trust?)
4. When was the assignment recorded? (Well after the Closing Date of the REMIC trust?)
5. What do the governing regulations for this particular REMIC state about Assignment of the Mortgage Loans? (Is it obvious to the USSEC deponent that the regulations were violated?)
6. Has the USSEC ever been notified by anyone to investigate this particular REMIC trust?
7. Does the USSEC have any records of whether or not a credit default swap counterparty paid the certificate holders in full?
8. Does the USSEC have any records of whether or not any default insurance policies paid the certificate holders in full?
9. Does the USSEC have any records of whether or not there were any settlements wherein the certificate holders were paid in full or in part; thus settling any future payments due to them?
10. Has the USSEC ever investigated this REMIC for any securities violations or irregularities?

In other words (and this is just a smattering of all of the questions to be asked of your USSEC deponent) … you’re trying to get the USSEC deponent’s attention to the fact that he/she can testify as to the fact that none of the governing regulations for the REMIC were complied with and that under New York Trust Law, they are void. Any question relevant to violations of the REMIC’s governing regulations would require a statement from the USSEC deponent that could be inferred to be a conclusion of law and the other side will object, but the comment will still go on the record, where the judge can see it.

This is a direct way to get someone in authority to see the assignments as fraudulent and to initiate a potential investigation, both civil and criminal, which may force the mortgage loan servicer to back off rather than run the risk of an exposed criminal prosecution.

You want the judge to see the REMIC for what it is and what the servicer is actually trying to do. Because most judges think they’re pensions are tied to these REMICs, to discover that the REMIC has been closed and the certificate holders paid would mean that the servicer (who has no contract with you) can triple-dip by stealing your home and that the judge doesn’t have to worry about his pension is going to be affected by making the proper ruling and kicking the mortgage loan servicer out of court.

If the investors (certificate holders) settled the case with the REMIC and accepted payment in full, how then can they come into court and claim they were financially harmed? They can’t … that’s the point. They’d have to prove they were damaged and if they got an insurance settlement and were paid in full, they weren’t damaged; thus, the mortgage loan servicer would be potentially committing fraud on the court to attempt to introduce evidence to the contrary.

Remember, in order to issue a subpoena, you have to file suit. You can use the SEC’s own forms to request all of the documents contained in the REMIC’s file for the shipping fee and they will send them certified (outside of the litigation); however, that takes time and doing it outside of litigation means the court has no control over the outcome of the request for anything from the USSEC. The fees for deposing a single party or entity these days is $3,000 – $5,000 depending on where the deposition takes place. However, if you’re trying to protect a million dollar property, no stone should be left unturned.

Again, this isn’t legal advice. It’s just plain common sense.

3,041 CRIME SCENES

(OP-ED)– The author of this post is the author of the book Clouded Titles (among numerous others) and proffers this message for educational purposes only and in no way should this be construed as legal advice.

Why the foregoing number?

That’s how many counties, boroughs and townships there are in America that contain public land records.

I recently received a video interview which contains the commentary of John O’Brien (Southern Essex MA Register of Deeds) and Jeff Thigpen (Guilford County NC Register of Deeds), both of whom I know and respect. Both share the commonality with some not-so-notoriously known elected officials (Armando Ramirez (Osceola County FL Circuit Clerk) and Nancy Rister (Williamson County TX County Clerk) who, having audited their public records echoed similar sentiments.

“When I saw the results of the audit we did in Williamson County, Texas, I was overcome with the same level of feeling as if I found out my husband was cheating on me,” said Clerk Rister, who was re-elected to her position the following term with strong approval ratings from her constituents.

Another commonality these four public officials shared is that their grievances are all the same … their public land records have been trashed by robosigned documents, millions of them, just in those four counties.

I gave two separate, one-hour lectures to two sessions of the Texas Clerks’ School back in January of 2012. In those two sessions, I asked a simple question … “How many of you in this room have heard of MERS?”

Only a few hands went up. I was in shock. I knew at that very moment that I was going to have to do everything in my power to sound the alarm, through workshops, seminars and in the promotion of my reading materials. Having conducted forensic examinations of two separate land records, I have come to the conclusion that even today, the land records continue to be littered with these trash documents, executed by second and third-tier parties who have no knowledge whatsoever about the validity of their contents. What’s worse … law firms involved in the pursuit of foreclosures are directing the production of these documents, which are then used as evidence in the public record to facilitate foreclosures on unsuspecting homeowners.

I have been through this diatribe before. This isn’t the first time I’ve spoken up about what constitutes “trash” documents. I spoke briefly with two different Clerks of public records in Missouri and Texas, they were so frustrated with everything they’d seen in their land records (as to these types of “assignments”) that they simply chose NOT to run again for another term and quietly faded into the landscape, knowing the evils and pitfalls that would continue to affect borrowers who continue to stupidly take on securitized mortgages, thinking they “got a deal”, when in fact, they have absolutely no idea WHO actually owns their mortgages or what condition these mortgages are in (financially).

DAY 91

This is a significant day in the history of mortgage repayment histories. Many a borrower has been told that in order to do a loan modification, they have to be 90 days late on their payments. There is an underlying reason for this.

On Day 91 is when the REMIC and its servicer get to “cash in on the chips”.

On average, a $500,000 mortgage loan will net the REMIC and its servicer $7,000,000 after Day 91. How’s that possible?

Credit default swap payouts. Default insurance payouts. Defective title insurance payouts. PMI, LPMI and MIP payouts. And then, the servicer, who has been dutifully paying the certificate holders (investors) of these REMICs every month gets more gravy by foreclosing on the house, alleging default on the part of the borrower when they know in fact, they told the borrower to stop making the mortgage payments … or, even in light of that … made the mortgage payments (principal and interest) to the investors … so they were never in default in the first place!

In order to stop the foreclosure (or at least put the brakes on it for awhile), the homeowner has to either respond to the lawsuit (mortgage states) or initiate a suit (deed of trust states). Sadly, dating as far back as 2009 when the first wave of foreclosures hit, 97.5% of all homeowners served with process packed up and moved out of their homes. Abandonment constitutes possession based on the mortgage contract.

LACK OF ENFORCEMENT

Who would have thought that by taking out a mortgage loan that the borrower would end up out on the street? This is only one minute reason for the homeless population being what it is today, especially in areas of the country where taxes and regulations (and more corrupt court systems) reign.

When I met with John Healey, the Fort Bend, Texas District Attorney way back in 2012, I showed him a stack of documents I had pulled from his county’s land records. I showed him samples of robosigning. I showed him samples of notary fraud. I showed him incomplete documents (that were neither signed nor notarized) that were still allowed to be recorded in the land records (all this in front of a red-faced Clerk, Dianne Wilson, PhD, who could not believe any of these documents got past her deputy clerks) and his response was, “we don’t have the white collar division necessary to investigate any of these matters”.

I plainly stated, “John, it only takes one prosecution to send a message. I’ll even help your department with the investigation to dig up solid evidence”. He would have none of it. The banks are just too powerful and his political ass was more important than standing up for what was right.

It will be a sad day in hell … even after it “freezes over” … that you’ll get any prosecutorial arm to lift a finger to help consumers out of this dilemma.

This is a battle that must be fought by the 2.5% of those homeowners who want “justice”. Is that what you call it these days?

Statistically, 1 out of 100 cases brought before the lower court systems in this country go anywhere. 99 out of 100 cases (which is why they called the movie 99 Homes) end up getting tossed out (dismissed) because all of the foreclosure defense attorneys who handle these types of cases are out for the buck or in the alternative, are overwhelmed and uneducated when it comes to dealing with the actual working elements of a foreclosure case.

The government hasn’t helped either. Thanks to the convenience of a bioweapon virus, most of the courts in this country have been shuttered out of fear. In fact, moratorium after moratorium has extended the foreclosure process out even further, leaving families who were without income during this alleged pandemic in a state of limbo, not knowing when the “knock at the door” would come and a sheriff’s deputy or process server would be standing there with papers. The government has made it all too easy to streamline foreclosures, so those that have limited means to fight stand little chance of winning even more time to stay in their homes.

APATHY HAS BECOME AMERICA

It is said to think that the majority of families who haven’t paid rent during the entire economic shutdown are continuing to live off the fat of their landlords, who have been forced into destitution themselves because of having to pay on their mortgage loans when there’s no subsistence whatsoever from their tenants. Maybe we should blame the landlords for taking on too much loan burden. Maybe we shouldn’t. After all, investing in real estate was supposed to be the American Dream, right? What on earth changed all that?

Most of America was locked inside their homes and programmed purposefully by the mainstream media to be fearful of a disease whose numbers have been constantly manipulated to serve the political interests and agendas of politicians who seek to control John Q. Public (that would be all of us) by enslaving us into taking injections that are only for emergency use only. It isn’t enough that the shots themselves are killing Americans, the loss of loved ones due to the jab is also being covered up and this leaves the family unit in shambles. How are people supposed to fight when they remain in a state of confusion?

This is the type of programmable conditioning that George Orwell wrote about in his book 1984.

Clerks Rister and Thigpen both became directly involved in lawsuits to try to stem the tide of phony documents. Both were shut down in the civil courts as the judges stated the Clerks had no private right of action. When you don’t have an actual harm, how can you proceed as a plaintiff? That’s basic Justice 101.

TURN THE TABLES

Understand that “default” has to be proven. It never is. In fact, it’s admitted to by homeowner’s attorneys more than not. Once the judge hears (or questions) “When’s the last time you made a mortgage payment?” (the judge is prosecuting the case for the bank), it’s game over.

Foreclosure defense attorneys would do well to understand that it’s not the REMIC (lender) coming to court to collect on the booty (the gravy from the sale of the house) … it’s the mortgage loan servicer that’s doing the dirty work. Getting the bank’s attorney to admit who he’s actually representing is the first battle. Getting to the issue of how much money the REMIC and the certificate holders made off of DAY 91 is yet another battle that must be fought. Again, the certificate holders have to show they were “harmed” too … if they can’t show harm, it’s game over for them too.

How simple is discovery? Getting the plain statements out on paper is half the battle (the homeowners could do it themselves). But … we have become a society of “doers”. We do what we are told. If the people do not rise up, they will be defeated and the BlackRocks of the world will move in, buy up their foreclosed homes in bulk and turn America into a nation of renters. While the government will attempt to play itself as the hero, the government has made things worse by driving inflation through the roof.

It’s one giant squeeze play on America and the smart homeowners have already figured out Plan B.

Past DAY 91, the mindset should be, seek alternative, less-expensive housing. Downsize. Research. Fight back to stay in your home as long as you can. Use cash for keys as a last option (not a first). Make the bank spend a bunch of money by answering your lawsuits or initiating them. Homeowners have private rights of action when it comes to trash documents littering their chains of titles. This is where “the stand” begins.