Update – January 3, 2013:
The Dubin Law Firm Defense Team headed by Fred Arensmeyer worked out a loan reinstatement deal with Wells Fargo for the Phillips-Tehiva Family just before the holidays. Next time you are in Hana, stop by Braddah Hutts and have lunch with the Tehivas. Yes, Virginia there is a Santa Claus.
UPDATE – January 3, 2012:
Wells Fargo has agreed to stay the eviction until the hearing of Feb. 7, 2012.
On Friday December 23, 2011 at 4:00 P.M., two days before Christmas, the Phillips-Tehiva Family of Hana, Maui, Hawaii, (6 children, mom, dad and grandmother) received notification of a “criminal trespass” eviction from their home, located on property which has been in the Phillips Family for more than 100 years.
The action, taken by Wells Fargo Bank, occurred after the Phillips-Tehiva Family filed a motion on Thursday, December 22nd for a hearing to review the court’s eviction order based on fraudulent and forged documents.
“This 60(b) Motion is based on new evidence showing that Wells Fargo’s foreclosure was void because of an invalid assignment of the mortgage,” according to the attorney for Phillips-Tehiva. “A major issue is the fact that this was a securitized loan in which Wells Fargo violated the terms of the securitization agreement,” said the attorney.
The Note and the Mortgage on this loan were required to be transferred, assigned and delivered to the securitized trust vehicle by July 10, 2007 when the securitization deal actually closed. However, the attempt to assign the loan occurred on June 24, 2010, which was three years too late.
The Phillips-Tehiva family of Maui, Hawaii, like millions of other Americans, are besieged and victimized in the fraud and forgery of the Wall Street bank’s mortgage-backed securities Ponzi scheme. Phillips-Tehiva merely tried to follow instructions to modify their loan (after Wall Street’s securitization scheme collapsed the economy in 2008) and were scammed into a fraudulent foreclosure. Originally banks told consumers that they had to miss 3-4 payments to qualify for HAMP, even though homeowners just wanted a slight reduction in payment. In this case, as Phillips-Tehiva complied with the servicer’s protocol, the Non-Judicial Foreclosure (NJF) occurred while the homeowners thought they were under a modification program.
Over 30 letters and twice as many phone calls transpired between Phillips-Tehiva and the servicer of their Option One loan, AHMSI. Starting on April 10, 2010, AHMSI sends a letter telling Phillips-Tehiva how they can cure their loan that was “placed in foreclosure”.
Phillips-Tehiva sent payments as requested 4 different times. Each time the payments were returned (of course after some delay of time) and each time the requested amount was escalated. This continued until the servicer effectuated the NJF on March 3, 2011. This is not a case where the borrower could not or would not make the payments. Phillips-Tehiva followed the servicer’s instructions. AHMSI asked for $2000, then $4500, then $8500 – all in a period of 3 months between April – June 2010. Each time Phillips-Tehiva complied.
The cat & mouse game continued.
More phone calls to AHMSI ensued and Phillips-Tehiva was instructed to send more money to AHMSI which they did in a Western Union Quick Collect as instructed by AHMSI in the amount of $4300.00. On January 19, 2011, the Phillips-Tehiva family received a letter from AHMSI returning a “copy” of their $4300.00 payment made on January 15, 2011 and telling them to pick-up the returned payment they had requested from Western Union in 2-3 days. The family immediately called AHMSI and was instructed that the $4300.00 was not enough and that they needed to send another $2400.00 in order to save their modification – which they did.
This was all clearly just a stall tactic in order to foreclose on unsuspecting homeowners and keep them from contacting an attorney until almost too late. What the servicer did not “bank” on was the fact that the Phillips-Tehiva family is one of the 2% that don’t just roll over and walk away. They did nothing wrong. They followed instructions. They paid the money requested. And more importantly, this is family land.
Jaydene Phillips-Tehiva wrote letters pleading with the servicer to help her save their home and family land – not knowing that AHMSI was just an intermediary and had no control over their loan and of course, Jaydene had no idea that her loan documents had allegedly been sold to some unknown Trust.
It is CLEAR that Phillips-Tehiva assignment document has been forged to effectuate unlawful foreclosure.
Phillips-Tehiva is not an unusual case. In fact, it is the norm. Laws were manipulated over the past couple of decades to assist in the scheme. Lawmakers have been mesmerized by campaign cash and lobbying that is akin to bribery in order to make statutory changes in both state and federal governments that led to the world’s largest international Ponzi scheme perpetrated by the Wall Street banks. This isn’t an assumption – this is a FACT.
The point of fraud that is finally getting a spotlight is the Assignment of Mortgage.
As Adam Levitin, Associate Professor of Law Georgetown University Law Center and Marie McDonnell, MCDONNELL PROPERTY ANALYTICS, INC., a Mortgage Fraud and Forensic Analyst and a Certified Fraud Examiner credentialed by the Association of Certified Fraud Examiners have testified that mortgage loans not properly and timely transferred into the Trusts is a critical issue.
“If the notes and mortgages were not transferred to the trust, then the trust lacks standing to foreclose.” [Source: Professor Levitin testimony before the House Financial Services Committee Subcommittee on Housing and Community Opportunity on Nov. 18, 2010]
The reason this “Assignment of Mortgage” issue has recently vaulted to the forefront of foreclosure defense is due to the fact that it has become increasingly apparent that the mortgage loan documents were NEVER properly assigned to the TRUSTs as dictated by the Trust controlling documents called Pooling & Servicing Agreements. It is yet another example of the never-ending fraud committed by the Wall Street banks
The entire mortgage-backed securities Ponzi scheme is fraught with fraud and forgery and the banks want to get out of the “bad paper” that they created. Maybe it’s because the banks (and the government) don’t want the investors to find out that the banks manipulated the assets (mortgage loans). ”If the notes and mortgages were not properly transferred to the trusts, then the mortgage-backed securities (MBS) that the investors’ purchased were in fact non-mortgage-backed securities. In such a case, investors would have a claim for the rescission of the MBS, meaning that the securitization would be unwound, with investors receiving back their original payments at par (possibly with interest at the judgment rate),” says Levitin, Congressional Testimony at page 20.
Rescission would mean that the bank who securitized the Trust would have the notes and mortgages float back on its books. The losses on the loans would be the securitization bank’s, not the MBS investors, and that the securitization bank MUST have sufficient capital for the mortgages. Levitin further adds, “If this problem exists on a wide-scale, there is not the capital in the financial system to pay for the rescission claims; the rescission claims would be in the trillions of dollars, making the major banking institutions in the United States would be insolvent.” This is the real reason there are foreclosures and evictions. The banks wrote more loans than they can legally hold. Repeat that. Do you get it yet? No, this isn’t ethically or legally sound reasoning - it is, however – a very sad FACT.
The Bottom-line facts that must be recognized by astute legal professionals, before and behind the “bench” – Assignments of Mortgage in a MBS typically involve a transfer of the assets to a New York common law trust. Transfers to New York common law trusts are governed by the common law of gifts. In New York, such a transfer requires actual delivery of the transferred assets in a manner such that no one else could possibly claim ownership (see Levitin Testimony). It is unlawful – actually invalid – void to try and transfer the mortgage loan documents after the trust has closed. It’s just too damn late. And let’s face it, investors know this – they don’t want to admit these facts – but they know this and they are facing the loss of REMIC shelter and will probably have to pay the IRS.
Phillips-Tehiva have learned and confirmed through a full report (TEHIVA FORECLOSURE FORENSICS & EXHIBITS (MTM), 12.26.2011) by Marie McDonnell, McDonnell Property Analytics, Inc., of Dedham, MA, the Assignment of Mortgage used by Wells Fargo Bank, N.A, a National Association as Trustee for Soundview Home Loan Trust 2007-OPT2 to effectuate a non-judicial foreclosure was fraudulent. As stated by securitization forensics expert, Marie McDonnell:
Marie McDonnell has been auditing residential mortgage transactions throughout the nation on behalf of consumers and their attorneys since 1991. With 25 years of experience in the field, McDonnell is a pioneer in the field of forensic mortgage analysis and mortgage fraud examination. In the spring of 2009, McDonnell intervened in the now famous cases styled U.S. Bank v. Ibanez and Wells Fargo Bank v. LaRace. She submitted two expert reports to the trial court and a definitive Amicus Brief to the Massachusetts Supreme Judicial Court that revealed the fatal defects in the securitization of the Ibanez and LaRace loans that led the trial court judge to overturn these two foreclosures. In September 2011, Marie submitted an Amicus Brief to the Massachusetts Supreme Judicial Court in the matter of Eaton v. Fannie Mae in which she exposed a fraudulent assignment of mortgage belied the wrongful foreclosure of Eaton’s property.
Tonight, Phillips-Tehiva has an Emergency motion before Maui Judge Kawano to review for a TRO stay until February 7, 2012 when the entire 60(b) motion can be heard. Please say a prayer; but for the grace of God go all of us.
Nobody wants to think that the Wall Street banks executives are a bunch of criminals – but the facts speak for themselves. We all have to answer to our own divine power when the time comes to leave this earth; and no matter how much fun that money and influence can buy, when you meet temptation – be compassionate, be ethical and act with the greatest of integrity, and above all - Always Let Your Conscience Be Your Guide!