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homeowners or attorneys stating that they or their clients is ―unable to get loan modifications done through a lender. What can I do?‖ The first question I ask is if the lender is Indymac/One West. Invariably, it is. I also field the same type of calls from loan modification companies. Everyone is having the problem of Indymac not cooperating with regard to doing loan modifications. Furthermore, if I google the issue or check out loan modification forums, the same is true on the internet. What is going on with Indymac/One West? Why aren‘t they doing loan modifications? This article will try and bring together the known facts for a better understanding of the situation, and discuss what the Indymac situation means for foreclosures in general — and the government‘s response to the crisis. First, to understand the situation today, one must have an understanding of the recent history of Indymac. History Indymac was a national bank in the U.S. It was insured by the FDIC. On July 11, 2008, Indymac failed and was taken over by the FDIC. Indymac offered mortgage loans to homeowners. A large number of these loans were Option ARM mortgages using stated income programs. The loans were offered by Indymac retail, and also through Mortgage Bankers would fund the loans and then Indymac would buy them and reimburse the Mortgage Banker. Mortgage Brokers were also invited to the party to sell these loans. During the height of the Housing Boom, Indymac gave these loans out like a homeowner gives out candy at Halloween. The loans were sold to homeowners by brokers who desired the large rebates that Indymac offered for the loans. The rebates were usually about three points. What is not commonly known is that when the Option ARM was sold to Wall Street, the lender would realize from four to six points, and the three point rebate to the broker was paid from these proceeds. So the lender ―pocketed‖ three points themselves for each loan. When the loans were sold to Wall Street, they were securitized through a Pooling and Servicing Agreement. This Agreement covered what could happen with the loans, and detailed how all parts of the loan process occurred. Even though Indymac sold off most loans, they still held a large number of Option ARMs and other loans in their portfolio. As the Housing Crisis developed and deepened, the number of these loans going into default or being foreclosed upon increased dramatically. This reduced cash and reserves available to Indymac for operations. In July, 2008, the FDIC came in and took over Indymac. The FDIC looked for someone to buy Indymac and after negotiations, sold Indymac to One West Bank. OneWest Bank and its Sweetheart Deal
I believe that the Agreement does apply to Securitized loans. It is at this point that the details get very confusing.000 in additional income above the actual Purchase Price loan amount after the FDIC reimbursement.000 and subtracts the $185. The principle owners of OneWest Bank include Michael Dell and George Soros. How does this translate to the ―Real World‖? Let us take a hypothetical situation. OneWest makes $52. Therefore.000. OneWest would make even more money through foreclosure because OneWest would keep the ―excess‖ and not pay it to the investor! Pooling and Servicing Agreement When OneWest has been asked about why loan modifications are not being done. Total loss according to the FDIC is $315. When OneWest took over Indymac.000. the FDIC and OneWest executed a ―Shared-Loss Agreement‖ covering the sale. Note: It is not readily apparent as to whether this agreement applies to loans that IndyMac made and Securitized but still Services today. it becomes readily apparent why OneWest Bank has no intention of conducting loan modifications. In that event. At this point. Some of the major details are: OneWest would purchase all first mortgages at 70% of the current balance OneWest would purchase Line of Equity Loans at 58% of the current balance. so its current value is likely about $185.000 for an “investment” of $385.000. (George was a major supporter of Barack Obama and is also notorious for knocking the UK out of the Euro Exchange Rate Mechanism in 1992 by shorting the Pound). A homeowner has just lost his home in default. In the event of foreclosure. At 70%.000. and not the current balance. Total loss for OneWest is $200.000 to the Purchase Price of $185. CA.000 and OneWest sells the home for that amount. ‗FDIC takes the $500.000 Purchase Price. Missed payments and other foreclosure costs bring the amount up to $550. It was created solely for the purpose of absorbing Indymac Bank. they are responding that their Pooling and Servicing Agreements do not allow for loan modifications. This Agreement covered the terms of what the FDIC would reimburse OneWest for any losses from foreclosure on a property. However. . Any modification means that OneWest would lose out on all this additional profit. OneWest bought the loan for $385. OneWest sells the property. then the FDIC would reimburse OneWest to the tune of $252. and you have One West recovering $437. 2009 from the assets of Indymac Bank. If the FDIC is covering ―ONLY‖ 80% of the loss.000. But this is not how FDIC determines the loss. Add the $252. Here are the details of the transaction: The original loan amount was $500. the FDIC would cover from 80%-95% of losses.000 The home is located in Stockton.000. using the original loan amount.OneWest Bank was created on Mar 19.000. so I shall try to simplify the terms.
Page S-12 also states: . states on Page S-67: Certain Modifications and Refinancings The Servicer may modify any Mortgage Loan at the request of the related mortgagor. As an example. By creating separate Indymac Corporations — which the Depositor. they did not count on certain MBS securities and portfolio loans coming back to bite them and force them under. However. Indymac wrote the Agreement in order to protect itself from liability for these garbage loans. head of the FDIC has also stated the same. In addition. These sections would appear to suggest that the only way that OneWest could modify the loan would be as a result of buying the loan back from the Issuing Trust. Page S-12 states the same ―policy‖: The servicer is permitted to modify any mortgage loan in lieu of refinancing at the request of the related mortgagor.Indymac The Issuing Entity for the Trust was…………. the Agreement for Indymac INDA Mortgage Loan Trust 2007 – AR5. See “Servicing of the Mortgage Loans— Certain Modifications and Refinancings” and “Risk Factors—Risks Related To Newly Originated Mortgage Loans and Servicer’s Repurchase Obligation Related to Early Payment Default” in this prospectus supplement. This sounds like a plausible explanation. the Agreement covers all aspects of the Securitization Process.………Indymac In other words. under limited circumstances. Indymac was the only party involved in the Pooling and Servicing Agreement other than the Ratings Agency who rated these loans as `AAA‘ products. provided that the Servicer purchases the Mortgage Loan from the issuing entity immediately preceding the modification. since few people understand the Pooling and Servicing Agreement. Loan Modifications As referred to earlier. However. provided that the servicer purchases the mortgage loan from the issuing entity immediately preceding the modification.Indymac The Master Servicer for the Trust was……. there may be an out. The parties involved in the Agreement are: The Sponsor for the Trust was……Indymac The Seller for the Trust was……………Indymac The Depositor for the Trust was……………. with respect to Loan Modifications.Sheila Bair. Sponsor. the servicer will repurchase certain mortgage loans that experience an early payment default (default in the first three months following origination). But… Parties Involved Here is the ―dirty little secret‖ regarding IndyMac and the Pooling and Servicing Agreement. To make matters worse. and other entities were — Indymac created a bankruptcy-remote vehicle that could not come back to them in terms of liability.
the seller will be obligated to repurchase or substitute for the mortgage loan as further described in this prospectus supplement under ―Description of the Certificates—Representations and Warranties Relating to Mortgage Loans” and “—Delivery of Mortgage Loan Documents. And even when they say that they are attempting to do loan modifications. For each Shared-Loss Loan in default or for which a default is reasonably foreseeable. as with HAMP and other programs. since they can make more money by foreclosing on the property. Substitutions or Purchases of Mortgage Loans The seller will make certain representations and warranties relating to the mortgage loans pursuant to the pooling and servicing agreement. Instead. Why did Indymac even sign up for HAMP. The Shared-Loss Agreement states the following: 2. — which. or shall use reasonable best efforts to cause third-party servicers to undertake. it is called ―Intent‖. or an uncured material document defect exists. then this could potentially force Indymac to modify the loan. they are fulfilling all necessary requirements so that they can foreclose the second that they ―decide‖ the homeowner does not meet HAMP requirements.1 Shared-Loss Arrangement. it becomes important to note that Indymac/OneWest signed aboard with the HAMP program in August 2009.Required Repurchases.” The above section may be the key for litigating attorneys to fight Indymac. The Purchaser shall retain all analyses of the considered alternatives and servicing records and allow the Receiver to inspect them upon reasonable notice. The Purchaser shall document its consideration of foreclosure. If with respect to any mortgage loan any of the representations and warranties are breached in any material respect as of the date made. charge-off and short-sale (if a short-sale is a viable option and is proposed to the Purchaser) alternatives and shall select the alternative that is reasonably estimated by the Purchaser to result in the least Loss. then OneWest has been truly successful in every manner. (a) Loss Mitigation and Consideration of Alternatives. reasonable and customary loss mitigation efforts in compliance with the Guidelines and Customary Servicing Procedures. if they have no intention of executing loan modifications? Clearly. they are still refusing to do most loan modifications. meets the HAMP requirements for doing what is in the best interests of the ―investor‖. HAMP At this point. they persist in foreclosing on almost all properties. loan restructuring (if available). the Purchaser shall undertake. Such agreements are usually considered to be interpreted to the benefit of the homeowner. What was the ―Intent‖ of the Shared-Loss Agreement? Was the intent to provide OneWest Bank solely with a profitable incentive to take over Indymac Bank? If so. just for appearances. In legalese. If fraud or other issues can be raised that will show a violation of the Representations and Warranties. Even though they became a part of the program. .
an appellate panel ruled that the judge had no right to do it. 2009 OneWest worked with the Hennepin County. OneWest‘s failure to modify loans may actually amount to fraud on the Treasury and US taxpayers. Minnesota Sheriff‘s department to change the locks on a distressed home despite stating in a Nov. 25 e-mail that they were rescinding both the foreclosure and the sheriff‘s sale. SUCCESSFUL CASES AGAINST ONEWEST . A year after the New York Judge Spinner wiped away the debt. While Judge Spinner ruled that the bank's practices warranted him erasing the homeowners' debt. the appellate judges found that he had no authority to render such a judgment—and did not give the bank fair notice that such consequences were even on the table. As a result. OneWest Bank has taken a much more aggressive approach to foreclosing on properties. "You expressed concern that … you and your mother will be evicted from the property. it should have been an incentive to use foreclosure alternatives. but with the primary goal to assist homeowners in trouble? If this was the intent. repugnant. that will not take place …‖ Changing the locks was done without any court action which bypasses acknowledged and mandated Due Process on home foreclosures in Minnesota. New York penalized OneWest for their ―harsh. Rest assured. from 80-95 cents on every dollar. Controversial foreclosures on IndyMac loans In enforcing its rights under the loans purchased from IndyMac. could OneWest be actionable by the Federal Government for fraud? In fact the true ―Intent‖ was to limit losses to the Treasury Department. technically. 2009 a Judge Spinner in Long Island.Or was the intent to offer to OneWest Bank a way to be compensated for losses for foreclosures. OneWest Bank said. Additionally several judges have issued Temporary Restraining Orders and Preliminary Injunctions against OneWest preventing OneWest from foreclosing on properties where the borrower claims OneWest failed to follow proper procedure in foreclosing on the property or otherwise violated the borrower's rights. But the reality is that the quick turnaround on foreclosure seems to give OneWest a better return. New York penalized OneWest for their ―harsh. and the tax payer. Since. 2009 a Judge Spinner in Long Island. And if so. On December 8. by canceling the debt in favor of the borrower. On November 25. OneWest appears to simply ignore the intent and just foreclose. then OneWest has failed miserably in its actions. shocking and repulsive‖ actions in trying to On November 25. shocking and repulsive‖ actions in trying to work out a distressed mortgage. One West would get 5-20 cents of any savings. repugnant. Each and every loan modification done would save the Treasury. So.
All other pages of the Amended Lift Stay Motion simply identified "OneWest" and not "OneWest. unprecedented civil jury verdict finds major u. 2010. 64. as servicing agent for Deutsche Bank" as the movant. OneWest Bank guilty of fraud bank breached mortgage agreement in case brought by u. See EXHIBITS for 27 page opinion of the Court. 2010. Other than this declaration. 2010 and denied the motion. Attached to the Amended Lift Stay motion was the same Burnett Declaration that accompanied the First Lift Stay Motion. McDonald. as he "signed [it] both as an employee of Movant and as an agent for MERS." and not simply "OneWest" as the movant.000 SANCTIONS from OneWest for Discovery Violations. was awarded $25." Bk. Debtor objects to a lift of stay by OneWest. OneWest filed an amended motion for relief from stay (the "Amended Lift Stay Motion"). In Re: BRIAN W. ONEWEST BANK. the bankruptcy court determined that OneWest. bank. FSB Case No. On October 19. and OneWest. again challenging OneWest's standing to move for relief from stay. . Davies objected to the First Lift Stay Motion on October 6.s. The first page of the accompanying "Notice of Motion" named "OneWest. See EXHIBITS. 2010. 6:10-bk-37900SC Debtor demonstrates the extremely weak position that OneWest has when it comes to standing. JAMES MCDONALD v.000 within 7days directly to McDonald. CC-11-1221-MkHPa. pro se litigant James McDonald obtained a summary judgment against OneWest on similar grounds. did not have standing to move for relief from stay and that Burnett's Declaration lacked credibility.s. Davies filed an objection to the Amended Lift Stay Motion on November 5. 2011 CA 000706. Fraud investigator. In its order. Dkt. on January 7. No. Case No. as servicing agent for Deutsche Bank. No. govt. as agent for Deutsche. BAP No. Additionally. The court ordered OneWest to pay the $25. C10-1952RSL in March of 2013. 2011.The auditor has extensive knowledge of IndyMac and their sloppy paperwork and also OneWest and their extreme difficulties in the courtroom recently. without prejudice. Bk. challenging OneWest's standing to move for relief from stay. Yerger v. DAVIES. No. The bankruptcy court heard the Amended Lift Stay Motion on November 18. OneWest attached no additional exhibits to this filing. OneWest Bank.
Assignee. OneWest (Dual-Tracking injunction) (4-9-14) OneWest v. . STEINBERGER (Robo-Signing a Felony) The Court of Appeals seems to have assumed that no foreclosure would be permissible without the foreclosing party having a chain of assignments from the originator of the loan. Nominee. Altering/modifying loan terms without the legal authority to do so. OneWest (Homeowners receive Cash Settlement plus Free and Clear title to 2 houses. Garcia (Judge Finds Issues with Robo Signer ―ROGER STOTTS‖ Affidavit) Onewest v. San Luis Obispo.500 each time.. Dorner * (Defective execution of Mort.)(1/11) Onewest V. Drayton (10-21-10)(Judge Schack) Arizmendi v. RE: Sanctions) 10-4-12 Rigali v. Took out forced-placed insurance on property they did not own. Alexander Roth (MERS transfers Deed of Trust but only makes vague reference to note 9-1-10) Below is a small list of the improprieties that OneWest and IndyMac have been admonished by numerous Judges around the country for perpetrating against homeowners in foreclosure: o o o o o o o o o Falsely claiming to be the owner/holder in due course of the tangible Note. or systematically violating those terms in ways that make it difficult for the borrower to defend against. Using fraud. ONE WEST (MERS no authority) (9/13) OneWest v. issues Order to Show Cause. (1/14) BAVAND v. Paying Bonuses to workers who force homeowners into foreclosure. etc.DiRenzo v. Cullen (OneWest not the owner of note dismissed) 3-3-10 Onewest v. One West (Stay Motion Denied)(5/11) OneWest Bank v. CA) (5/13) OneWest Bank v. Deceptively convincing borrowers to agree to unfair and abusive loan terms. false statements and evidence to invoke the jurisdiction of the court. Falsely claiming legal standing by use of names such as Trustee. Preying on the ignorance of the court and homeowner. Beneficiary. Request homeowners to submit and resubmit loan mod paperwork multiple times that pays the bank $1. Meisels (Judge Schack Slams OneWest Attorneys.
Entering on-time payments as late. Destroyed original Notes to. industry standards. (Known as double-dipping). Refusing payments to guarantee default. Filing forged/faked documents in courts and public land records. Claim homestead-exemption status as a corporation. Ignoring customer complaints and "qualified written requests". Creating fictitious documents (Assignments. Adding misc. fees to purposely create a deficiency with the borrower's next payment. then charging the late penalties to the borrower. Charging force-placed insurance when the homeowner already has full coverage. Power of Attorney. Affidavits. Committing fraud upon the courts by stating they are the Holder and Owner of the Note when in fact . to exact illegal and unauthorized fees. Triggering the terms of a null and void Deed of Trust/Mortgage. Coercing the homeowner into signing a forbearance agreement to strip away their legal rights. Robo-Signing legal documents without review or the legal authority to do so. Intentionally cause delays to run up your legal expenses. SEC and regulatory guidelines. Backdating legal documents. Paying property taxes late. Using fraudulent means to obtain AAA-ratings on "crappy loans". Arrogantly violate numerous laws and regulations. . Committing perjury through misrepresentations. Falsely report a default to the credit bureaus when it is the servicer who altered records to manufacture the default. Creating additional false deficiencies through a variety of questionable practices. Converted paper Notes to digital images with no law to support it. Adding thousands of dollars in unearned or unauthorized legal fees. Failing to follow PSA. Falsely claimed tangible Notes were transferred to the Trusts. etc.o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o Falsely claiming Pooling & Servicing Agreements. inter-alia. Participate in the active concealment of origination fraud. Manipulating account records. guidelines or other industry-authored writings supersede the law. rules. Not adhering to the terms of the loan documents. Feloniously claim REMIC tax-exempt status. Diverting mortgage payments to pay lawyers to foreclose. Paying taxes and insurance on the wrong property. Withholding or redacting discovery evidence.). Rounding up ARM rates when on a downward trend. Creating Lost Note Affidavits to conceal that they never had the original Note or file.they do not own or hold the "original" tangible Note. cover-up origination fraud. Apply to the trust for reimbursement after deducting the fees from the borrowers p&i payments. Not applying payments to principal and interest. Falsifying records and documents.
law enforcement officials. Wire / Mail Fraud. Felonious Influence of Public Officials. appeals and malicious prosecution to litigate forever.failure to report the crime(s) Fraud in the inducement. Public Corruption. Electronic surveillance. Violation of ethics. court personnel and government officials. Securities Fraud. Abuse of Process. Payoffs to the consumer's attorney. Insurance Fraud.o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o Tampering with court transcripts and removing evidence from the record. Extortion. Threats & intimidation. and many others. Theft of Government Services. Perjury. Conspiracy. Embezzlement. Unjust Enrichment. Tax Fraud (REMIC). Using abuse of litigation. Conjuring up events that never happened while refusing to provide documentation to support their fallacies. Misprision of Felony . Notary Fraud. Racketeering . Statute of Frauds Constitutional and Civil Right violations. judges. Money Laundering. Refusing to cooperate with attempts to refinance and stop the illegal foreclosure. Evidence Tampering.RICO. . Grand Theft.
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