Where is the Lender? Where is the Counterparty?

Posted on October 22, 2009 by livinglies

EDITOR’S NOTE: usedkarguy gets it pretty well. He submitted the following comment which I
have edited into this post, but I retain all his basic observations. This one deserves a re-read.

Essentially he is proving a major point: You can’t pick up one end of the stick without picking
up the other.

If the pretender lenders are claiming that the loan obligations are in the “trust” (REMIC) then the
securities must have been sold. But then how can they say they stuck with unsold MBS for which
they needed TARP relief? That is why discovery on the TARP funds is so important. Somewhere
there is a document that says we are holding the following TOXIC ASSETS. And in that list are
thousands of mortgages in hundreds of pools that never made it or which have vanished into thin
air.

So the representation for example that U.S. Bank is the holder of the note as Trustee for Asset
backed Security Pool 1234 must be tested by discovery and an evidentiary hearing if possible.
That is where the rubber meets the road.

The arrogance of the pretender lenders fades when they are requred to move from spurious
attorney representations in court to production of actual evidence — documents that can be
authenticated by people with personal knowledge. And remember that would be people who
are COMPETENT WITNESSES.

The legal argument is that even if the loan DID make it through the trust, it therefore was sold to
the investors who purchased the Mortgage Backed Securities which were hybrids, containing the
language of a bond and the conveyance of a percentage equity in the pool AS OWNERS
THEREOF. Thus without naming them as LENDERS and proving that the LENDERS are
foreclosing with the assistance of the pretender lender, the pretender lender is simply stealing the
property from a LENDER who knows nothing about the existence of the foreclosure proceedings.

The factual argument is that in many cases the loan never made it in any form, on any document,
to the Trustee, the Trust, the REMIC or the investors.

THAT is why you win in discovery — unless they account for all aspects of this transaction, they
have no accounting at all. A creditor’s burden of proof is simple: here are the records and our
witnesses that show that you took value from us and here is all the money anyone ever paid on
this obligation. So here is your balance. This is done in small claims court every day.

Without an accounting they cannot positively state whether the obligation is in default, and
if so, to whom the obligation is actually owed (i.e., who lost money on the allegedly defaulted
loan).

Fromusedkarguy—————————-

Where’s the counterparty? Who wrote the default swap?

In my trust, it was Bear Stearns (Now JPMChase), and the Securities administrator (seller) was
Citigroup Global Markets. Trustee HSBC for the Wells Fargo Trust. Wells Fargo wore all the
other hats.

Now, the vintage deals WFHome Equity Asset Backed Securities 2005-1/2/3/4 were all “left on
dealers shelves” like the same vintage SASCO Deals. Anyway, if CitiGroup Global got stuck
holding the bag ($62Billion writedown, anyone remember?) and the securities remained
unsold, how did they (the mortgage pools) end up in the 1999 Wells Fargo/Norwest Assets
1999 Trust? It’s the “extinguishment of the liability” (140-3) wherein the problem lies (reverse-
repo). It’s a modern-day version of “hot-potato”. It’s hot because they used the loan to borrow
more money after dispersing the investor money. They don’t have the money to pay back the loan
that constituted the proceeds of YOUR loan (it was borrowed from the investor). The AB1122 is
where they defraud the investors by not reporting the actual failure of the trust (receivership).
And, the REMIC trust is taking in more money in foreclosure and sheriff’s sale/liquidation (not a
true open market transaction as perpetrated with fraudulent representation on the part of the
foreclosing entity) than in interest pass through (the key to tax-exempt flow through (conduit)
status) (more than 20%?), if the defaulted loans are indicative of 20% of the total number of loans
in the pool, the mathematical consequences are supposed to trigger receivership (liquidation). The
WFHEABS05-2 are running at 40% delinquent/foreclosed/bankrupt/REO. These default rates are
common throughout meltdown-era MBSs.

My question, Mr. E, is who is the counterparty? They are the one who got stuck with loss on your
note, but they have no note, and no claim to the collateral. They got paid a premium to perform
on a contract, and lost. They don’t have any assigned interest in the house, only a receipt for
paying the claim. The loan is extinguished on one set of books, but is continuously carried as
an asset (money still a receivable) on another set of books (ABS) even though no such
obligation exists.

Now, back to True Sale. This is the “surrender of control” issue that violates the true sale status.
The loan was to be assigned “without recourse” when the Depositor agreed to deposit it
with the Trust. I don’t think any of this was done other than with a passing of dollar values
over a wire. There was never any “arms-length” transaction, the pretender lender stayed on
immediately to “service” the loan and make sure you defaulted, they directed the appraisal of
the collateral to cover the loan. Then they end up recovering the collateral at sheriffs sale to sell at
a later date directing proceeds into their own pockets (the sponsor usually holds the equity
tranches and the Z tranche, which receives non-regular cash flows).