In the post of November 15, 2009, I introduced oli, the art of Hawaiian chant, and recommended two recordings filled with many examples of oli.

Oli is the indigenous Hawaiian performance system of chanting. More specifically, it is the vocal performance of mele that is not accompanied by hula, thus oli does not use patterned rhythm or instrumental accompaniment. Any sense of rhythm is determined entirely by the words of the mele, and line lengths do not need to be consistent or uniform in length.

The system of oli includes five named genres that are distinguished from each other on the basis of musical elements. Here I shall provide recommendations to specific tracks, so that you, dear readers and listeners, may hear the specific sounds of each of the specific genres of oli.

Kepakepa

Kepakepa is a rapid conversational style of delivery without sustained pitch. Kepakepa is used to recite lengthy mele such as genealogy or enumerations. Two examples of kepakepa chanting:

1. An awesome example is the opening sequence of the 1989 documentary film Kumu Hula: Keepers of a Culture. Chanter Kaipo Frias of Hiloʻs Hālau o Kekuhi performs the mele “A Kauaʻi i ka ʻolewa i luna” at Halema‘uma‘u Crater.
2. “Oli kepakepa,” track 10 on Hawaiian Chant: The Lyrical Poetry of Hawaii (JVC VICG-5457) is another awesome example of rapidfire delivery of genealogical information.

Kawele

Kawele is heightened declamation that adds dramatic tension to the recited mele. Although less rapid than kepakepa, kawele also does not use sustained pitch. Hiloʻs Hālau o Kekuhi has been at the forefront of bringing this chant style to modern audiences. Examples:

1. Chant student Heanu Weller of Hilo’s Hālau o Kekuhi presented her contest chant, “He ‘Aina Kupa ‘Oe Moloka’i,” in the 1989 King Kamehameha Chant and Hula Competition in the kāwele style. Highlights were televised, and a taped copy can be viewed at the University of Hawai‘i’s Wong AudioVisual Center.
2. More recently, Hālau o Kekuhi‘s 2007 recording Hi‘iaka I Ka Poli O Pele (Mountain Apple MACD 8558), uses the kāwele style in the scene enacting the kilu game.

Olioli

The olioli style of oli chanting uses definite sustained pitch. The recitation is placed on one recitation tone. Phrase beginnings may begin at a lower pitch, then settles in on the reciting tone; chanters may also use one or two pitches above the reciting tone to add some sonic interest, but those pitches are generally understood as temporary and even decorative. Phrase endings may also descend to a lower pitch. The prolonging of the recitation tone at line and phrase ends are moments of opportunity to apply the a specific kind of vibrato called ‘i‘i, again, to decorate the tone.

The olioli style is the style of chanting that remained in active use during the lean years when few students were learning the art of chanting. There are numerous examples of olioli on recordings. The examples listed here span a range of chanters across several generations.

1. Ka‘upena Wong, “Mele Inoa No Kamehameha.” Mele Inoa (Poki SP-9003, 1973).
2. Ka‘upena Wong, “Eia Hawai’i” on The Music of Hawaii(National Geographic 706, 1976).
   Chanter Ka‘upena Wong was a student of revered authority Mary Kawena Pukui, and was the ho‘opa‘a (chanter/drummer) for Pukui’s daughter, Pele Pukui Suganuma. Ka’upena’s performances were recorded in his prime, just before Ka‘upena withdrew from active performance.
3. Maiki Aiu Lake, “Noho ana ‘o Laka i ka uluwehi,” Maiki: Chants and Mele of Hawai‘i (Hula HS-588, 1992). Renowned kumu hula Maiki Aiu Lake, a student of  Lokalia Montgomery, trained several classes of students who went on to play leading roles in reviving ancient hula kahiko in the 1970s.
4. Edith Kanaka‘ole, Pualani Kanaka‘ole Kanahele, and Nālani Kanaka‘ole. Mother and two daughters perform in the olioli style on the opening track of the 1978 LP recording Ha‘aku‘i Pele i Hawai‘i! (Hula HS-560).
5. Lehua Hulihe‘e, “Noho ana ke akua i ka nāhelehele.” Hawaiian Drum Dance Chants (Smithsonian Folkways SF-40015, 1989).
6. Manu Boyd, “Oli Lei.” On Ho‘okena, Choice of the Heart (Ho‘omau HOCD-1002, 1991).
   Lehua Hulihe‘e and Manu Boyd studied with John Kaha‘i Topolinski and Robert Cazimero, respectively, both of whom studied with Maiki Aiu Lake.

Ho‘āeae

The ho‘āeae style of oli chanting combines melodic patterning and intense use of ‘i‘i vibrato phrases to achieve an emotionally powerful style of chanting especially favored for mele of love and affection. John Kaha‘i Topolinski and two of his chant students, Anthony Lenchanko and Kalani Akana, are major figures in modeling their understanding of ho‘āeae on the field recordings in Bishop Museum Archives.

1. The classic example of the revived ho‘āeae style of oli is the track “Mele Ho‘oipoipo” performed by Kalani Akana on the compilation CD Nā Kumu Hula / Songs from The Source Vol. 1 (State Council on Hawaiian Heritage SCHH-CD-7001, 1997).
2. Another example is by “Kaulana Kohala,” chanted by Brian Mersberg on Nā Kamaʻs Kamakolu (Makani MR-003).

Ho‘ouwēuwē

Laments and funerary dirges were delivered in the style known as ho‘ouwēuwē, which was largely defunct in urban areas by the mid-20th century. Two tracks recorded on Hawaiian Chant: The Lyrical Poetry of Hawaii(JVC VICG-5457) are based on Kumu John Lake‘s recollection of wailing at family funerals during his childhood:

1. Track 7, “Ho‘ouwē‘uwē”
2. Track 13, “Kanikau”

An old song, but one I know well enough that I think it’s good singing practice (because I am a terrible singer!).

My My, Hey Hey clip 1:41, 1.5 MB (very small file, opens in new window)

Well well!

After Mr. van Pound gave you a better inisght in the daily studio mayhem it seems to be time to let you enjoy another video of Raijin the drummer.

This time not only a soundcheck, but also impressions of the way to the studio and a small excerpt of a song as you will likely hear it soon.

This excerpt is nothing close to final, in fact it’s the guidetrack that we used to record our new tracks with, but you will get the idea.

So have fun, feel free to rate and stay tuned for more webisodes from the M to the M to the D

Hi – this is Dick von Pound, responsible for the low strings of MAKE MY DAY. Now I’ll tell something about recording the bass tracks for our first EP.

After our drummer Raijin laid down the grooves for all the four songs, at about 7 pm I got into the car, fetched my equipment out of the rehearsal room and bought some new heavy picks.

The set-up was as following: My Sandberg Basic Ken Taylor 5-string (unfortunately I am not paid for that sentence, but I really love that bass) was plugged in my amplifier and from there right in the mix. The volume of my own track was set rather low for me – by that, you are literally forced to play loud and really hammer the pick on the strings to get the gnarling going.

I started with “I’d Die For A Party” – some time ago, I came in the rehearsal room and showed the guys a bass line you usually only hear in 70s disco hits. We garnered it with a nice, downbeat verse and a “come on and sing-along” chorus. We’re sure once you hear it in a rock club, it will unfold its whole power. Just listen to it in the following video:

I usually use a pick during the most songs, but in this song the feeling is transported in a better way by playing with fingers. Especially the octave-laden chorus line doesn’t need the attack of a pick. Some parts I even slap, which you bassists will recognize, I’m sure ^^.  As always – the first song you record in a session takes longest, but all in all he had still time for some ideas we didn’t have in the rehearsal room before.

The next song was “Childhood Heroes” – It’s our sing-along anthem, which features  bass lines which are rather simple… But in every recording I did I experienced the same: The simple things are never simple in the studio. Because you really have to pay attention to every note you play. In this song I really appreciate my decision to buy a 5-string bass .

About 11 pm, it was time to eat. While Raijin and Boss drove to Kings to get some meat, I recorded the song I which I “feared” the most: “Get Away”. As Raijin noted, it’s our highway song, and it literally lives by a laid back, melodic bass line which stands alone for a good time of the verse and needs a lot of focus. But again – the most difficult things are simple in the studio ^^ And despite my craving for burgers it was done very quickly and right in time for the food.

The postprandially recorded “What’s your name” was actually the easiest. Around 1.30 am we finished recording, so we needed around 12 hours for drums and bass tracks.

Soon we’ll keep you updated from the guitars and vocals recorded. So stay tuned.

Until then:

Have A Nice Day

with

Make My Day

I haven’t written a song in awhile. I wrote a rough outline of one in September, but I didn’t know how to resolve large parts of it. I haven’t played at all really since then, been much too busy. I picked it up again today, though, and managed to finally flesh it out.

Here’s a rough (not good) recording of it:

Singular Being Rough 1:41, 1.4 MB
(Opens in a new window, very small file)

Lyrics

Sounds are reflected in the light
Sounds are reflected in your voice
The stars, they greet us
And looking back I follow
Never stopping to question the light

When darkness reaches us
A question in my mind
I spin around, I turn to find
A singular being, in my mind

The stars, they greet us
A question in my mind
A singular being, in my mind

At last it’s arrived this morning. My Christmas present in advance! “Ralph Waughan Williams: Choral Works“, a 2008 Hyperion 4 CD box set including Toward the Unknown Region, The Shepherds of the Delectable Mountains, A Song of Thanksgiving, The Pilgrim’s Progress, Five Mystical Songs, and so much more! Splendid performances of the Corydon Singers and Matthew Best as conductor. I think this is definitely one of the most rewarding purchase of  the year! =] I’d like to thank RobertCEvans for having recommended me the RVW recordings with Sir John Gielgud as speaker. Great voice.

The other day, storyteller Cheryl Thornton and I played one of Storyvalues‘ recorded stories to a kindergarten class in Peel district, outside Toronto. The seven-minute long recording of ‘All the Colours’ features narration by Cheryl and original music performed on African instruments. It’s a poignant, allegorical story that imaginatively shows how all people truly are created as equal.

All things considered, the little five year olds were presented with a rather sophisticated listening experience. No cartoon voices or music, just a compelling well-told folktale with evocative, unfamiliar music. How would they react? It was 2:30 on a Friday afternoon. Would they lose interest and grow bored?

Everyone remained quiet and settled as the story played. At the end we asked the class to relate what part of the story was their favourite.

20 little hands shot up. Amazingly, each student was eager to and able to relate a specific part of the story that appealed to him or her. Some even commented that they liked the African music that went along with the story. One little girl, - ‘the girl who never speaks’ – even contributed to the discussion. It was clear from their comments that the story resonated with the kids on a personal level, as well as on a group level.

Later, stuck in traffic on the way back to Toronto, Cheryl and I had ample time to reflect upon the experience. We certainly saw how effective stories can be in reaching children. More specifically, however, we saw how the information contained within the recording was so throughly and quickly assimilated.

In seven short minutes, this classroom learned about equity, diversity, african music, culture… and themselves, through an artistic medium that bridged the gap between imagination and intellect.  The students were actively listening to the words and music, working out the details in their own way, forming their own connections and sharing their own conclusions.

This shows how good information design can be used in an educational setting, and how effectively stories can be in teaching children essential life lessons.

the band Portishead not too long ago completed a long awaited third album. I just got it, along with their second album and their live album from NYC. This is beautiful and very dark music. Beth Gibbons’ voice in particular is so seductive and the lyrics so brutally honest that it is the kind of music that will always stay with you. i would say this music is not for happy times. Maybe some folks hear it purely as chilled-out trip hop. To me though it is much much more bringing back memories too of the early noughties which for me were a mixed bag of emotions. There was certainly room for sad and even desperate rumination.
Right now I am listening to Dummy, the highlights being Roads, Sour Times and Glory Box. Having said that, there is not one weak or ill-conceived song on the album. The bass line ’solo’ two-thirds of the way through Roads is something everyone ought to hear once before they die.

Portishead – Roads

Come back with me 40 years ago to the New England Conservatory Orchestra and my first time playing in the orchestra.Yes, at that time, I was attending classes and coming directly to orchestra from class, I was playing bass clarinet, the orchestra was playing The Fairies Kiss, by Stravinsky, and the bass clarinet is heard early in the introduction. I got the horn together and wet the reed, which then looked like it had waves in it. I was trying to get it on the mouthpiece, when the conductor asked, “You need some HALP? I mumbled something about comng from class, (and yes it did play). Then later,  we were doing the Mendelssohn 4th, the Italian Symphony, and you all know the first movement. There is,immediately prior to the recapitulation a lovely little solo by the first clarinet, reminiscent of the returning first theme. I was playing first clarinet.Mr. Burgin, the Concertmaster of the Boston Symphony Orchestra at the time, looked at me and said,”clahnet, think of the most beautiful sound you can make when playing this solo” I looked up at him, started counting and listening and entered with the biggest CLAM anyone ever heard. (honk, honk, anyone ever do that?)
Naturally, there was dead silence. I think I finally got it right, but I have never forgotten his setup for that noise I made. This was my formal introduction to the music for orchestra by Felix Mendelssohn-Bartholdy. The Italian Symphony is a work filled with wonderful little places for the clarinet, as are all of the works of this incredibly gifted composer. The Salterello, the final movement is a wonderful exercise for the entire woodwind section to learn to play impossible things together, to share the joys of section articulation and to get into the orchestra in general. There are no better works than the Mendelssohn Symphonies, and of course, we have the Midsummer Nights Dream, written when the boy was about 17. Thought the Octett is perhaps his greatest masterpiece, and does not have clarinet, we will all listen to that any old time.(Let us not forget the Violin Concerto, perhaps the most famous of the Romantic Period))
Mendelssohn was in general a calm conventional guy, except for occasions wherein he would get so angry over something that he would have to sleep for perhaps as much as 12 hours. But, as I was saying, he was a conventional type of person, especially when compared to Schumann, Copin and Liszt, but a few of his contemporaries.
He also started the Lepizig Conservatory, did all that writing, spoke both English and German and was celebrated in the UK at an early age.
And then, there was Jenny Lind, the very celebrated Swedish Soprano. They worked together on many concerts, but there is very good evidence that he proposed to her, (she was unmarried, but he had 5 children with his wife Cecile) and asked her to elope with him and go to America. It is said that while there was “absence of evidence,there was no evidence of absence” of the affair.She, upon hearing of his death said that he was the most welcome person to her spirit, but that she had lost him after just finding him.
You know, he also was quite a fine painter as well. Amd all this in about 39 years. He died after having a series of strokes.
We listen to his music with such joy and ease.
But then, we have the music for the clarinet, aside from the orchestral music. We have the Sonata, not one of his best works, quite repetitious with nothing special about it, and there are the two Concertpieces, #113, and #114 for  Clarinet Basset Horn and Piano.
These, I have played many many tmes, but always with Cello instead of Basset Horn. An actual Basset Horn is only usually borrowed from an orchestra when they do the Mozart Requiem . so hardly worth the effort of trying to borrow them for these two works. Cello works quite well and both little pieces are terrific to open or even to close a concert. There are even examples of them on Utube, though not terribly well done, and there has even been an orchestral version made from them, which also sounds not well. But, perhaps I am spoiled from playing them so frequently. (I’ll get them on my site, when I learn how to do it.) Until then, if anyone wants to hear me play them in concert, send me a CD and I’ll copy them for you.
In closing I will say that Felix Mendelssohn-Batholdy, who was born Jewish and whose father renounced this religion, (Mendelssohn was baptised Lutheran) and his Reformation Symphony # 5, has the most beautiful clarinet parts, maybe even more than the Scotch(3) and the Italian(4), and one final little bit, it was he who ressurrected the Saint Matthew Passion of JS Bach, so many years after Bachs death, and indeed reinvented Bach (who had become out of fashion in Mendelssohns time.)
All this, and clarinet music, and Jenny Lind, in 39 years.
Get busy, everybody, and stay well, and oh yes, keep practicing.

Sherman

“These cases encourage debtors and other parties to defensively use the mortgage securitization servicing system to prohibit servicers and other non-lending parties from enforcing rights under a mortgage. This trend, if it continues, may have significant impacts for consumer-debtor lawyers, as well as law firms that enforce mortgages and participated in mortgage loan securitization.”

“A note and mortgage may go through multiple transfers. Documentation of these transfers is imperfect, and many assignments were not recorded at the local real estate filing offices.”

“The creation of Mortgage Electronic Registration Systems, Inc. (“MERS”) further complicated matters.”

“For instance, if a debtor raises these or similar defenses, it may only be necessary for the servicers and the mortgagees to complete and file the proper assignment documents.“

The fabricated fraudulant assignment.

4closureFraud
http://4closurefraud.wordpress.com/

Review of the London Philharmonic Orchestra’s CD release of Mahler Symphony No. 6 conducted by Klaus Tennstedt in Canada’s La Scena Musicale:

In 1991, Norman Lebrecht wrote of the phenomenal effect of Klaus Tennstedt in concert: “He found his favourite audience in London, where luridly coifed punks stood motionless in the bear pit of the Royal Albert Hall through his 90-minute performance of Mahler’s Sixth.” About the conductor’s return to the podium after surgery and treatment for cancer, Lebrecht went on, “He returned to give an awesome Mahler Sixth… that left many in tears.” And here is Tennstedt live in this crucial work captured by BBC engineers at the peak of his powers. It is an astonishing account and one that amply demonstrates the virtuosity of the LPO of 1983 and its consummate devotion to the fragile and chronically insecure conductor. This is a disc that no self-respecting Mahlerian should be without. Note also that the LPO label also offers an equally impressive 1985 performance of Mahler’s First (LPO-0012) coupled with Lieder eines fahrenden Gesellen sung by Thomas Hampson.

- Stephen Habington

LPO-0038

Indymac Bank F.S.B. v Yano-Horoski

“Upon the Court’s own motion, it is

ORDERED that the Adjustable Rate Note in the amount of $ 292,500.00 dated August 4, 2004 made by Diana J. Yano-Horoski in favor of IndyMac Bank F.S.B. shall be and the same is hereby cancelled, voided, avoided, nullified, set aside and is of no further force and effect; and it is further

ORDERED that the Mortgage in the amount of $ 292,500.00 which secures said Adjustable Rate Note given by Diana J. Yano-Horoski to Mortgage Electronic Registration Systems Inc. As Nominee For IndyMac Bank F.S.B. dated August 4, 2004 and recorded with the Clerk of Suffolk County on August 16, 2004 in Liber 20826 of Mortgages as Page 285, as assigned to IndyMac Bank F.S.B. by Assignment recorded with the Clerk of Suffolk County in Liber 21273 of Mortgages at Page 808 shall be and the same is hereby vacated, cancelled, released and discharged of record; and it is further

ORDERED that the Plaintiff, its successors and assigns are hereby barred, prohibited and foreclosed from attempting, in any manner, directly or indirectly, to enforce any provision of the [*7]aforesaid Adjustable Rate Note and Mortgage or any portion thereof as against Defendant, her heirs or successors; and it is further

ORDERED that the Judgment of Foreclosure & Sale granted under this index number on January 12, 2009 and entered in the Office of the Clerk of Suffolk County on January 23, 2009 shall be and the same is hereby vacated and set aside; and it is further

ORDERED that the Notice of Pendency filed with the Clerk of Suffolk County on July 27, 2005 under sequence no. 172456, which was extended by Order dated September 2, 2008 shall be and the same is hereby cancelled, vacated and set aside; and it is further

ORDERED that the Notice of Pendency filed with the Clerk of Suffolk County on August 29, 2008 under sequence no. 199616, shall be and the same is hereby cancelled, vacated and set aside; and it is further

ORDERED that the Clerk of Suffolk County shall cause a copy of this Order & Judgment to be filed in the Land Records so as to effectuate of record each and every one of the provisions hereinabove set forth with respect to cancellation of the instruments and items of record; and it is further

ORDERED that Plaintiff shall pay to the Clerk of Suffolk County, within ten (10) days from the date of entry hereof, any and all fees and costs required to effect cancellation of record of the Mortgage, Notices of Pendency and any other fees so levied; and it is further

ORDERED that within ten (10) days of the date of entry hereof, Plaintiff’s counsel shall serve a copy of this Order upon the Clerk of Suffolk County and the Defendant.

This shall constitute the Decision, Judgment and Order of this Court.”

2009 NY Slip Op 52333(U)
Decided on November 19, 2009
Supreme Court, Suffolk County
Spinner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2009

Supreme Court, Suffolk County

Indymac Bank F.S.B., Plaintiff

against

Diana Yano-Horoski, Wells Fargo Bank Minnesota National Association as Trustee for Soundview Home Equity Loan Trust 2001-1 and Kimberly Horoski, Defendants.

2005-17926

Steven J. Baum P.C.

Attorney for Plaintiff

P.O. Box 1291

Buffalo, New York 14240

Diana Yano-Horoski

Defendant Pro Se

8 Oakland Street

East Patchogue, New York 11772-5767

Jeffrey Arlen Spinner, J.

This is an action wherein the Plaintiff claims foreclosure of a mortgage dated August 4, 2004 in the original principal amount of $ 292,500.00 recorded with the Clerk of Suffolk County, New York in Liber 20826 of Mortgages at Page 285. The mortgage secures an adjustable rate note of the same amount with an initial interest rate of 10.375%. The mortgage encumbers real property commonly known as 8 Oakland Street, East Patchogue, Town of Brookhaven, New York and described as District 0200 Section 979.50 Block 05.00 Lot 001.000 on the Tax Map of Suffolk County. Plaintiff commenced this action by filing a Summons, Verified Complaint and Notice of Pendency on July 27, 2005. The Notice of Pendency was extended by Order dated April 28, 2008 and a Judgment of Foreclosure & Sale was granted on January 12, 2009.

Thereafter and in accordance with the Laws of 2008, Ch. 472, Sec. 3-a and in view of the fact that the loan at issue was deemed to be “sub-prime” or “high cost” in nature, Defendant seasonably requested that the Court convene a settlement conference. That request was granted and a conference was commenced on February 24, 2009 which was continued five times in a series of unsuccessful attempts by the Court to obtain meaningful cooperation from Plaintiff. In view of Plaintiff’s intransigence in its continuing failure and refusal to cooperate, both with the Court and with Defendant’s multiple and reasonable requests, the Court directed that Plaintiff produce an officer of the bank at the adjourned conference scheduled for September 22, 2009.

At the conference held on September 22, 2009, Karen Dickinson, Regional Manager of [*2]Loss Mitigation for IndyMac Mortgage Services, division of OneWest Bank F.S.B. (“IndyMac”) appeared on behalf of Plaintiff. IndyMac purports to be the servicer of the loan for the benefit of Deutsche Bank who, it is claimed, is the owner and holder of the note and mortgage (though the record holder is IndyMac Bank F.S.B., an entity which no longer is in existence). At that conference, it was celeritously made clear to the Court that Plaintiff had no good faith intention whatsoever of resolving this matter in any manner other than a complete and forcible devolution of title from Defendant. Although IndyMac had prepared a two page document entitled “Mediation Yano-Horoski” which contained what purported to be a financial analysis, Ms. Dickinson’s affirmative statements made it abundantly clear that no form of mediation, resolution or settlement would be acceptable to Plaintiff. IndyMac asserts the total amount due it to be in excess of $ 525,000.00 and freely concedes that the property securing the loan is worth no more than $ 275,000.00. Although Ms. Dickinson insisted that Ms. Yano-Horoski had been offered a “Forbearance Agreement” in the recent past upon which she quickly defaulted, it was only after substantial prodding by the Court that Ms. Dickinson conceded, with great reluctance, that it had not been sent to Defendant until after its stated first payment due date and hence, Defendant could not have consummated it under any circumstances (Defendant, through Plaintiff’s duplicity, found herself to be in the unique and uncomfortable position of being placed in default of the “agreement” even before she had received it). Plaintiff flatly rejected an offer by Plaintiff’s daughter to purchase the house for its fair market value (a so-called “short sale”) with third party financing. Plaintiff refused to consider a loan modification utilizing any more than 25% of the income of Plaintiff’s husband and daughter (both of whom reside in the premises with her), the excuse being that “We can’t control what non-obligors do with their money” (the logical follow up to this statement is how does the bank control what the obligor does with her money?). The Court found IndyMac’s position to be deeply troubling, especially since a plethora of sub-prime loans in this County’s Foreclosure Conference Part have been successfully modified with the lender’s reliance upon the income of non-obligors who reside in the premises under foreclosure. The Plaintiff also summarily rejected an offer by both Plaintiff’s husband and daughter to voluntarily obligate themselves for payment upon the full indebtedness, thus committing their individual incomes expressly to the purpose of a loan modification. It should be noted here that Defendant did not even request any waiver or “forgiveness” of the indebtedness aside from some tinkering with the interest rate, just a modification of terms so as to enable her to repay the same. It was evident from Ms. Dickinson’s opprobrious demeanor and condescending attitude that no proffer by Defendant (short of consent to foreclosure and ejectment of Defendant and her family) would be acceptable to Plaintiff. Even a final and desperate offer of a deed in lieu of foreclosure was met with bland equivocation. In short, each and every proposal by Defendant, no matter how reasonable, was soundly rebuffed by Plaintiff. Viewed objectively, it is apparent that Plaintiff’s conduct in this matter falls within the definitions set forth in 22 NYCRR § 130-1.1( c)(2), which might well warrant the imposition of monetary sanctions.

On the Court’s own motion, a hearing was held on November 18, 2009 in order to explore the issues herein. At the hearing, Ms. Dickinson appeared as well as Mr. Horoski. IndyMac claimed a balance due, as of September 22, 2009 of $ 527,437.73 which included an escrow overdraft of $ 46,627.88 for taxes advanced since the date of default but did not include attorney’s fees and costs.. Plaintiff was unable to tell the Court the amount of the principal [*3]balance owed. Mr. Horoski advised the Court that according to two letters received from Plaintiff, the principal balance was said to be $ 285,381.70 as of February 9, 2009 and $ 283,992.48 as of August 10, 2009. Plaintiff stated was that Defendant must have made payments though it was conceded that in fact no payment had been made.Plaintiff insisted that it had remained in regular contact with Defendant in an effort to reach an amicable resolution, that it had extended two modification offers to Defendant which she did not accept and further, that due to her financial status she was not qualified for any modification, even under the Federal HAMP guidelines. Plaintiff denied that it had “singled out” Defendants, simply stating that her status was such that she fell outside applicable guidelines. All of these assertions were disputed by Defendant.

That having been said, the Court is greatly disturbed by Plaintiff’s assertions of the amount claimed to be due from Defendant. The Referee’s Report dated June 30, 2008, which has its genesis in a sworn affidavit by a representative of Plaintiff (presumably one with knowledge of the account), reflects a total amount due and owing of $ 392,983.42. The principal balance is reported to be $ 290,687.85 with interest computed at the rates of 10.375% from November 1, 2005 through August 31, 2006 ($ 25,118.62), 12.50% from September 1, 2006 to February 28, 2007 ($ 18,018.66), 12.375% from March 1, 2007 to March 31, 2008 ($ 39,126.39) and 11.375% from April 1, 2008 to June 24, 2008 ($ 7,700.24) totalling $ 89,963.91. Plaintiff also claims $ 20.00 in non-sufficient funds charges, $ 295.00 in property inspection fees and $ 12,016.66 for tax and insurance advances. The Judgment of Foreclosure & Sale dated January 12, 2009 was granted in the amount of $ 392,983.42 with interest at the contract rate from June 24, 2008 through January 12, 2009 and at the statutory rate thereafter plus attorney’s fees of $ 2,300.00 and a bill of costs in the amount of $ 1,705.00. Even computing the accrual of pre-judgment interest of $ 18,299.18 (using Plaintiff’s per diem rate in the Referee’s Report) together with post-judgment interest at a statutory 9% through November 19, 2009 (an additional $ 31,740.90), the application of simple addition yields a total amount due of $ 447,028.50. This figure is $ 80,409.23 less than the $ 527,437.73 asserted by Plaintiff to be due and owing from Defendant. The Court is astounded that Plaintiff now claims to be owed an escrow advance amount of $ 46,627.88 when, under oath, its officer swore that as of June 24, 2008 that amount was actually $ 34,611.22 less. Moreover, it now appears that the elusive principal balance is either $ 290,687.85, $ 285,381.70 or $ 283,992.48.

It is the province and indeed the obligation of the trial court to assess and to determine issues regarding credibility, Morgan v. McCaffrey 14 AD3d 670 (2nd Dept. 2005). In the matter before the Court, the pendulum of credibility swings heavily in favor of Defendant. When the conduct of Plaintiff in this proceeding is viewed in its entirety, it compels the Court to invoke the ancient and venerable principle of “Falsus in uno, falsus in omni” (Latin; “false in one, false in all”) upon Defendant which, after review, is wholly appropriate in the context presented, Deering v. Metcalf 74 NY 501 (1878). Regrettably, the Court has been unable to find even so much as a scintilla of good faith on the part of Plaintiff. Plaintiff comes before this Court with unclean hands yet has the insufferable temerity to demand equitable relief against Defendant.

The Court, over the course of some six substantive appearances in seven months, has been afforded more than ample opportunity to assess the demeanor, credibility and general state [*4]of relevant affairs of Defendant and Plaintiff. Although not actually relevant to the disposition of this matter, the Court is constrained to note that Defendant is afflicted with multiple health problems which outwardly manifest in her experiencing great difficulty in ambulation, necessitating the use of mechanical supports. Moreover, Defendant’s husband, Mr. Gregory Horoski, suffers from a myriad of serious medical conditions which greatly impede most aspects of his daily existence. Nonetheless, both of these persons, together with their adult daughter who resides with them and who is substantially and gainfully employed, receive income which they are more than willing to commit, in good faith, toward repayment of the debt to Plaintiff and indeed, despite their physical challenges, they have appeared at each and every scheduled conference before this Court. At each appearance, they have assiduously attempted to resolve this controversy in an amicable fashion, only to be callously and arbitrarily turned away by Plaintiff. This has been so even in spite of the Court’s continuing albeit futile endeavors at brokering a settlement.

As a relevant aside, the scenario presented here raises the specter of a much greater social problem, that of housing those persons whose homes are foreclosed and who are thereafter dispossessed. It is certainly no secret that Suffolk County is in the yawning abyss of a deep mortgage and housing crisis with foreclosure filings at a record high rate and a corresponding paucity of emergency housing. While foreclosure and its attendant eviction are clearly the inevitable (and in some cases, proper) result in a number of these situations, the Court is persuaded that this need not be the case here. In this matter, Defendant is plainly willing to make arrangements for repayment and both her husband and daughter are likewise willing to allocate their respective incomes in order to reach the same end. Were Plaintiff amenable, she would presumably continue to maintain the property’s physical plant, pay taxes thereon and the property would retain or perhaps increase its market value. Plaintiff would receive a regular income stream, albeit with a reduced rate of interest and without sustaining a loss of several hundred thousand dollars. In addition, no neighborhood blight would occur from the boarding of the property after foreclosure which would, in turn, avert problems of litter, dumping, vagrancy and vandalism as well as a corresponding decline in the property values in the immediate area. In short, a loan modification would result in a proverbial “win-win” for all parties involved. To do otherwise would result in virtually certain undomiciled status for two physically unhealthy persons and their daughter, leading to an additional level of problems, both for them and for society.

Since an action claiming foreclosure of a mortgage is one sounding in equity, Jamaica Savings Bank v. M.S. Investing Co. 274 NY 215 (1937), the very commencement of the action by Plaintiff invokes the Court’s equity jurisdiction. While it must be noted that the formal distinctions between an action at law and a suit in equity have long since been abolished in New York (see CPLR 103, Field Code Of 1848 §§ 2, 3, 4, 69), the Supreme Court nevertheless has equity jurisdiction and distinct rules regarding equity are still extant, Carroll v. Bullock 207 NY 567, 101 NE 438 (1913). Speaking generally and broadly, it is settled law that “Stability of contract obligations must not be undermined by judicial sympathy…” Graf v. Hope Building Corporation 254 NY 1 (1930). However, it is true with equal force and effect that equity must not and cannot slavishly and blindly follow the law, Hedges v. Dixon County 150 US 182, 192 (1893). Moreover, as succinctly decreed by our Court of Appeals in the matter of Noyes v. [*5]Anderson 124 NY 175 (1890) “A party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression…” 124 NY at 179.

In the matter of Eastman Kodak Co. v. Schwartz 133 NYS2d 908 (Sup. Ct., New York County, 1954), Special Term stated that “The maxim of “clean hands” fundamentally was conceived in equity jurisprudence to refuse to lend its aid in any manner to one seeking its active interposition who has been guilty of unlawful, unconscionable or inequitable conduct in the matter with relation to which he seeks relief.” 133 NYS2d at 925, citing First Trust & Savings Bank v. Iowa-Wisconsin Bridge Co. 98 F 2d 416 (8th Cir. 1938), cert. denied 305 US 650, 59 S. Ct. 243, 83 L. Ed. 240 (1938), reh. denied 305 US 676, 59 S Ct. 356 83 L. Ed. 437 (1939); General Excavator Co. v. Keystone Driller Co. 65 F 2d 39 (6th Cir. 1933), cert. granted 289 US 721, 53 S. Ct. 791, 77 L. Ed. 1472 (1933), aff’d 290 US 240, 54 S. Ct. 146, 78 L. Ed. 793 (1934).

In attempting to arrive at a determination as to whether or not equity should properly intervene in this matter so as to permit foreclosure of the mortgage, the Court is required to look at the situattion in toto, giving due and careful consideration as to whether the remedy sought by Plaintiff would be repugnant to the public interest when seen from the point of view of public morality, see, for example, 55 NY Jur. Equity § 113, Molinas v. Podloff 133 NYS2d 743 (Sup. Ct., New York County, 1954). Equitable relief will not lie in favor of one who acts in a manner which is shocking to the conscience, Duggan v. Platz 238 AD 197, 264 NYS 403 (3rd Dept. 1933), mod. on other grounds 263 NY 505, 189 NE 566 (1934), neither will equity be available to one who acts in a manner that is oppressive or unjust or whose conduct is sufficiently egregious so as to prohibit the party from asserting its legal rights against a defaulting adversary, In Re Foreclosure Of Tax Liens 117 NYS2d 725 (Sup. Ct. Kings County, 1952), aff’d on other grounds 286 AD 1027, 145 NYS2d 97 (2nd Dept. 1955), mod. on other grounds on reargument 1 AD2d 95, 148 NYS2d 173 (2nd Dept. 1955), appeal granted 7 AD2d 784, 149 NYS2d 227 (2nd Dept. 1956). The compass by which the questioned conduct must be measured is a moral one and the acts complained of (those that are sufficient so as to prevent equity’s intervention) need not be criminal nor actionable at law but must merely be willful and unconscionable or be of such a nature that honest and fair minded folk would roundly denounce such actions as being morally and ethically wrong, Pecorella v. Greater Buffalo Press Inc. 107 AD2d 1064, 468 NYS2d 562 (4th Dept. 1985). Thus, where a party acts in a manner that is offensive to good conscience and justice, he will be completely without recourse in a court of equity, regardless of what his legal rights may be, Eastman Kodak Co. v. Schwartz 133 NYS2d 908 (Sup. Ct., New York County, 1954), York v. Searles 97 AD 331, 90 NYS 37 (2nd Dept. 1904), aff’d 189 NY 573, 82 NE 1134 (1907).

An objective and painstaking examination of the totality of the facts and circumstances herein leads this Court to the inescapable conclusion that the affirmative conduct exhibited by Plaintiff at least since since February 24, 2009 (and perhaps earlier) has been and is inequitable, unconscionable, vexatious and opprobrious. The Court is constrained, solely as a result of Plaintiff’s affirmative acts, to conclude that Plaintiff’s conduct is wholly unsupportable at law or in equity, greatly egregious and so completely devoid of good faith that equity cannot be permitted to intervene on its behalf. Indeed, Plaintiff’s actions toward Defendant in this matter have been harsh, repugnant, shocking and repulsive to the extent that it must be appropriately [*6]sanctioned so as to deter it from imposing further mortifying abuse against Defendant. The Court cannot be assured that Plaintiff will not repeat this course of conduct if this action is merely dismissed and hence, dismissal standing alone is not a reasonable option. Likewise, the imposition of monetary sanctions under 22 NYCRR § 130-1.1 et. seq. is not likely to have a salubrious or remedial effect on these proceedings and certainly would not inure to Defendant’s benefit. This Court is of the opinion that cancellation of the indebtedness and discharge of the mortgage, when taken together, constitute the appropriate equitable disposition under the unique facts and circumstances presented herein.

After careful consideration, it is the determination of this Court that the indebtedness evidenced by the Adjustable Rate Note dated August 4, 2004 in the original principal amount of $ 292,500.00 made by Diana J. Yano-Horoski in favor of IndyMac Bank F.S.B. should be cancelled, voided and set aside. In addition, the Mortgage which secures the Adjustable Rate Note, given to Mortgage Electronic Registration Systems Inc. As Nominee For IndyMac Bank F.S.B. dated August 4, 2004 and recorded with the Clerk of Suffolk County on August 16, 2004 in Liber 20826 of Mortgages at Page 285, as assigned by Assignment recorded with the Clerk of Suffolk County in Liber 21273 of Mortgages at Page 808 should be cancelled and discharged of record. Further, Plaintiff, its successors and assigns should be forever barred and prohibited from any action to collect upon the Adjustable Rate Note. In addition, the Judgment of Foreclosure & Sale granted on January 12, 2009 and entered on January 23, 2009 should be vacated and set aside and the Notice of Pendency should be cancelled and discharged of record. For this Court to decree anything less than the foregoing would be for the Court to be wholly derelict in the performance of its obligations.

Upon the Court’s own motion, it is

ORDERED that the Adjustable Rate Note in the amount of $ 292,500.00 dated August 4, 2004 made by Diana J. Yano-Horoski in favor of IndyMac Bank F.S.B. shall be and the same is hereby cancelled, voided, avoided, nullified, set aside and is of no further force and effect; and it is further

ORDERED that the Mortgage in the amount of $ 292,500.00 which secures said Adjustable Rate Note given by Diana J. Yano-Horoski to Mortgage Electronic Registration Systems Inc. As Nominee For IndyMac Bank F.S.B. dated August 4, 2004 and recorded with the Clerk of Suffolk County on August 16, 2004 in Liber 20826 of Mortgages as Page 285, as assigned to IndyMac Bank F.S.B. by Assignment recorded with the Clerk of Suffolk County in Liber 21273 of Mortgages at Page 808 shall be and the same is hereby vacated, cancelled, released and discharged of record; and it is further

ORDERED that the Plaintiff, its successors and assigns are hereby barred, prohibited and foreclosed from attempting, in any manner, directly or indirectly, to enforce any provision of the [*7]aforesaid Adjustable Rate Note and Mortgage or any portion thereof as against Defendant, her heirs or successors; and it is further

ORDERED that the Judgment of Foreclosure & Sale granted under this index number on January 12, 2009 and entered in the Office of the Clerk of Suffolk County on January 23, 2009 shall be and the same is hereby vacated and set aside; and it is further

ORDERED that the Notice of Pendency filed with the Clerk of Suffolk County on July 27, 2005 under sequence no. 172456, which was extended by Order dated September 2, 2008 shall be and the same is hereby cancelled, vacated and set aside; and it is further

ORDERED that the Notice of Pendency filed with the Clerk of Suffolk County on August 29, 2008 under sequence no. 199616, shall be and the same is hereby cancelled, vacated and set aside; and it is further

ORDERED that the Clerk of Suffolk County shall cause a copy of this Order & Judgment to be filed in the Land Records so as to effectuate of record each and every one of the provisions hereinabove set forth with respect to cancellation of the instruments and items of record; and it is further

ORDERED that Plaintiff shall pay to the Clerk of Suffolk County, within ten (10) days from the date of entry hereof, any and all fees and costs required to effect cancellation of record of the Mortgage, Notices of Pendency and any other fees so levied; and it is further

ORDERED that within ten (10) days of the date of entry hereof, Plaintiff’s counsel shall serve a copy of this Order upon the Clerk of Suffolk County and the Defendant.

This shall constitute the Decision, Judgment and Order of this Court.

Dated: November 19, 2009

Riverhead, New York

E N T E R:

______________________________________

JEFFREY ARLEN SPINNER, J.S.C.

4closureFraud
http://4closurefraud.wordpress.com/

Back in March or so I ruthlessly cast off all my CD cases and transferred all the CDs worth keeping to my computer. I also gave away about 150 CDs to be sold in a car-boot-sale. I focused then on getting only the best or the highly recommended versions of classical works and my collection grew from 50 or so CDs to about 350 in about 6 months. What a great 6 months! I discovered so much music and so many great recordings of works I had known before. I again tell anyone, don’t buy just any version of a piece especially thinking you are saving money. Only get the best. There are countless bargains on the best recordings too.

When I decided to turn to popular music I started interestingly with Bob Marley. Someone I rate very highly. A guy who is I think underrated in many circles still. It is the simplicity and honesty I love both of how he puts the emotion across and how he puts together a lyric. I got 9 CDs by him to add to the one I had. Now I have a decent Bob Marley collection with 2 live albums also.

Next I took care of firm favourites Led Zep. I got all the studio albums and the brilliant live album, How the West Was Won. This is what rock is all about.

I continued to bolster here and there also adding more of the incomparable Jazz Pianist Bill Evans to my Bill Evans Collection – I loved his music from the moment I got my first of his CDs.

Now it is the electronic and trip hop of the nineties that gets attention. I have done well not to over spend to get key missing albums by Massive Attack and Portishead. Two of the best bands that ever existed. Massive Attack seem never to put a foot wrong producing albums and songs that are now legendary. Portishead, dominated by the incredible voice of Beth Gibbons, have also been favourites since I first picked up a copy of Dummy in 1999, believing it then to be the best album I had ever heard.
I am now ‘completing’ my Bjork collection. I have loved Bjork since about 1998 but known of her for longer than that. I find her vocal style, her emotional directness and her so beautiful harmonies irresistible.

Here she is with Play Dead, one of her more commercial numbers yes but also one of her most passionate vocals.

Björk – Play Dead (HQ)

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. and
COUNTRYWIDE HOME LOANS, INC.,

v

WARREN E. AGIN, TRUSTEE,

A Massachusetts federal judge has upheld a bankruptcy court ruling allowing a trustee to treat a mortgage as an unsecured claim, which strips the mortgage holder of foreclosure rights, because of defective mortgage paperwork.

4closureFraud
http://4closurefraud.wordpress.com/

EXECUTIVE ORDER 13519

- – - – - – -

ESTABLISHMENT OF THE FINANCIAL FRAUD ENFORCEMENT TASK FORCE

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to strengthen the efforts of the Department of Justice, in conjunction with Federal, State, tribal, territorial, and local agencies, to investigate and prosecute significant financial crimes and other violations relating to the current financial crisis and economic recovery efforts, recover the proceeds of such crimes and violations, and ensure just and effective punishment of those who perpetrate financial crimes and violations, it is hereby ordered as follows:

Section 1. Establishment. There is hereby established an interagency Financial Fraud Enforcement Task Force (Task Force) led by the Department of Justice.

Sec. 2. Membership and Operation. The Task Force shall be chaired by the Attorney General and consist of senior-level officials from the following departments, agencies, and offices, selected by the heads of the respective departments, agencies, and offices in consultation with the Attorney General:

(a) the Department of Justice;

(b) the Department of the Treasury;

(c) the Department of Commerce;

(d) the Department of Labor;

(e) the Department of Housing and Urban Development;

(f) the Department of Education;

(g) the Department of Homeland Security;

(h) the Securities and Exchange Commission;

(i) the Commodity Futures Trading Commission;

(j) the Federal Trade Commission;

(k) the Federal Deposit Insurance Corporation;

(l) the Board of Governors of the Federal Reserve System;

(m) the Federal Housing Finance Agency;

(n) the Office of Thrift Supervision;

(o) the Office of the Comptroller of the Currency;

(p) the Small Business Administration;

(q) the Federal Bureau of Investigation;

(r) the Social Security Administration;

(s) the Internal Revenue Service, Criminal Investigations;

(t) the Financial Crimes Enforcement Network;

(u) the United States Postal Inspection Service;

(v) the United States Secret Service;

(w) the United States Immigration and Customs Enforcement;

(x) relevant Offices of Inspectors General and related Federal entities, including without limitation the Office of the Inspector General for the Department of Housing and Urban Development, the Recovery Accountability and Transparency Board, and the Office of the Special Inspector General for the Troubled Asset Relief Program; and

(y) such other executive branch departments, agencies, or offices as the President may, from time to time, designate or that the Attorney General may invite.

The Attorney General shall convene and, through the Deputy Attorney General, direct the work of the Task Force in fulfilling all its functions under this order. The Attorney General shall convene the first meeting of the Task Force within 30 days of the date of this order and shall thereafter convene the Task Force at such times as he deems appropriate. At the direction of the Attorney General, the Task Force may establish subgroups consisting exclusively of Task Force members or their designees under this section, including but not limited to a Steering Committee chaired by the Deputy Attorney General, and subcommittees addressing enforcement efforts, training and information sharing, and victims’ rights, as the Attorney General deems appropriate.

Sec. 3. Mission and Functions. Consistent with the authorities assigned to the Attorney General by law, and other applicable law, the Task Force shall:

(a) provide advice to the Attorney General for the investigation and prosecution of cases of bank, mortgage, loan, and lending fraud; securities and commodities fraud; retirement plan fraud; mail and wire fraud; tax crimes; money laundering; False Claims Act violations; unfair competition; discrimination; and other financial crimes and violations (hereinafter financial crimes and violations), when such cases are determined by the Attorney General, for purposes of this order, to be significant;

(b) make recommendations to the Attorney General, from time to time, for action to enhance cooperation among Federal, State, local, tribal, and territorial authorities responsible for the investigation and prosecution of significant financial crimes and violations; and

(c) coordinate law enforcement operations with representatives of State, local, tribal, and territorial law enforcement.

Sec. 4. Coordination with State, Local, Tribal, and Territorial Law Enforcement. Consistent with the objectives set out in this order, and to the extent permitted by law, the Attorney General is encouraged to invite the following representatives of State, local, tribal, and territorial law enforcement to participate in the Task Force’s subcommittee addressing enforcement efforts in the subcommittee’s performance of the functions set forth in section 3(c) of this order relating to the coordination of Federal, State, local, tribal, and territorial law enforcement operations involving financial crimes and violations:

(a) the National Association of Attorneys General;

(b) the National District Attorneys Association; and

(c) such other representatives of State, local, tribal, and territorial law enforcement as the Attorney General deems appropriate.

Sec. 5. Outreach. Consistent with the law enforcement objectives set out in this order, the Task Force, in accordance with applicable law, in addition to regular meetings, shall conduct outreach with representatives of financial institutions, corporate entities, nonprofit organizations, State, local, tribal, and territorial governments and agencies, and other interested persons to foster greater coordination and participation in the detection and prosecution of financial fraud and financial crimes, and in the enforcement of antitrust and antidiscrimination laws.

Sec. 6. Administration. The Department of Justice, to the extent permitted by law and subject to the availability of appropriations, shall provide administrative support and funding for the Task Force.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This Task Force shall replace, and continue the work of, the Corporate Fraud Task Force created by Executive Order 13271 of July 9, 2002. Executive Order 13271 is hereby terminated pursuant to section 6 of that order.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 8. Termination. The Task Force shall terminate when directed by the President or, with the approval of the President, by the Attorney General.

THE WHITE HOUSE,

November 17, 2009.

4closureFraud
http://4closurefraud.wordpress.com/

SYE002: D-Reflection – Wanna Party?

https://www.stompy.com/EP/150316

The second release on Sniff your Ears Recordings showcases a very talented selection of house music producers from the Netherlands and U.S.A. We introduce the talented young dutch producer D-Reflection on our label for the first time with this aptly titled track. With remixes for Joey Youngman, Bryan Jones, Raul Moros, Vincent Kwok, Hanna and projects with Dutchican Soul, he is one of the finest up and coming talents in the house music scene at the moment and we are glad to bring his quality to our label.

D-Reflection’s original mix is a seriously funky, soulful and jackin house track. Nice piano stabs, a grizzly bassline and a catchy vocal make it a certainty on any dancefloor. He also took the time to create the ‘Fresh Dub Mix’ which reflects the same vibe.

On the remix front firstly we have Sandwich Chris. With releases on Kinjo, Llama Farm and his hit on Flapjack (‘Music Speaks to All’), he deserves a nice introduction. We are very happy to have him on this package as his remix gives the package a deeper feel with his use of acid sounds, a deep bassline and other cool production elements.

The second remix is from U.S producer Clay Watkins. With one release under his belt so far we can say he is a fresh kid in town, but nevertheless he did an outstanding job on that track. The remix he has done for us is funky with a twist of blues. Real cool organ solos are used that give the track enough soul and body to make it work on this release. We recommend that you check out his other release too.

The final remix which completes the package is a huge soulful track by Costalane. A splendid track with massive keys and solos, Costalane knows how to make soulful music and with this remix there is no doubting this. You will hear more from him soon, but this is a great introduction to his sound.
Sit back and relax…

Thanks go to Tommy Largo for mastering all tracks.

No.1 –

This record fucking rules my world at the moment.

Crucial Blast Records has, as usual, come through with the goods on this one, although the band did split up after making this record and it did come out a while back in 2008. Regardless, just fucking get your hands on it, it’s an epic mix of brutal heaviness combined with brilliant, punishing noise, kind of like if MBV and Electric Wizard had a bastard child and then neglected it.

It’s Seriously That Good.

Geisha – Die Verbrechen Der Liebe

Part 1

Part 2

p.s. I have bought this record, so should you, hopefully this will entice you, thanks to the random stranger that megauploaded this shit.

No.2 -

This Blog is sweet. Especially if you like stoner rock. Which I most certainly do.

Check it out, keeps me fresh with sweet new music at all times.

No. 3 –

This blog is also awesome, for a multitude of reasons which i won’t go into right now, although most of you probably know this already and half of you probably ended up here, linked from there, whatever, here it is.

http://uberwensch.com/

Read it and weep fucktards!

I know i do.

Have a nice day and shit,

- Donovan

“Well, in short, in the words of the Rapper Puff Daddy, “It’s all about the benjamins, Baby.”

By O. Max Gardner III

Wayne Gretzky once said that his success was due to the fact that he focused on where the puck was going to be, not where it was. For most consumer debtors who have home mortgage loans and are involved in Chapter 13 bankruptcy cases, this Gretzkyism is somewhat of a double entendre. The fact of the matter is that most of these debtors have no idea who really owns their home mortgage loan and they most assuredly do not know why the balance owed keeps going up. Or, as Yogi Berra might say, these “guys have been double-pucked!”

And, the so-called “double-pucking” all starts with mortgage securitization. Securitization is a complex series of financial transactions designed to maximize the cash flow and cash out options for loan originators. The securitization and sale of assets is what gets the “off the balance sheet” boost in reported income for the originator. The originators secure immediate liquidity from assets that, in some circumstances, could not be readily traded in the capital markets. On paper, it sounds simple, in the real world it involves the creation of numerous Special Purpose Vehicle Corporations (SPV) designed to create the legal impression of an actual BPF sales transaction. However, the residuals, credit enhancements, and other derivative rights retained by the originators in the transferred assets create a Pandora’s Box of problems. A good example is Enron. Enron had enhanced the credit worthiness of thousands of asset-backed securitizations with Enron stock. When the Enron stock tanked so did the securitizations and Enron had to “recognize” all of these “off the books” transactions as liabilities. We know the rest of the story.

To securitize an asset, the loan originator creates a pool of financial assets such as mortgage loans. It then uses one or more SPV corporations to convert the large pools of these mortgages into complex investment certificates, backed or securitized by valid liens on the transferred collateral. These certificates are then rated and offered for sale to asset capital investors, foreign investors and life insurance companies to name a few. The certificates are normally split into various types or tranches, each of which has pre-determined cash flow or equity positions in the underlying collateral.

Unlike conventional bonds, payments of principal and interest from these mortgage backed securities (MBS) are based on the cash generated by the pooled assets. Cash can be generated by monthly mortgage payments and the pre-payment of the mortgage instruments by refinancing or early payment. The collateral for all of these bonds is always a pooled trust of the underlying assets, administered by a designated Trustee. The Trustee then enters into an agreement with a third-party to actually service the collection of the income from the pooled assets. These servicing agreements are normally consummated prior to the initial funding or transfer of the assets to the trust and are normally referred to as a Pooling and Servicing Agreement (PSA).

In many cases, the entity that originates or aggregates the assets for securitization will retain the rights to service the pool of mortgage loans for the trustee. These rights are referred to in the mortgage context as retained mortgage servicing rights (MSR). The entity holding the MSR rights is normally referred to as the Master Mortgage Servicer. The PSA may give the Master Mortgage Servicer the right to “farm-out” the actual servicing and collection of the mortgage loans to a primary servicer, a secondary or subservicer, or a default servicer. In the vast majority of cases, the consumer-mortgagor is making his or her monthly payments to one of these servicers, whom they erroneously believe is the entity that actually “owns their mortgage.”

The rights to service a mortgage loan are considered to be assets with recognized value. In fact, Mortgage Servicing Assets (MSA) are sold, assigned, and securitized just like the mortgage loans they service. Suffice it to say, the buying and selling of servicing rights accounts for much of the consumer confusion that leads to the common misstatement that “my mortgage has been sold 4 times in the past five years.” The mortgage has not been sold, just the rights to service the mortgage, the mortgage is still swimming in a pool with other similar debt instruments. And, since a Master Mortgage Servicer receives a service release premium (SRP) when it sells the servicing rights, the market is certainly active.

The final element in understanding this financial model is that you have public and private label placements of mortgage securitizations. All of the public placements are originated by the Government Sponsored Entities (FannieMae, FreddieMac, and GinnieMae commonly referred to as the GSE’s) and normally involve a single form of an investment bond or certificate called Pass-Through Certificates. All of these placements are the subject of detailed SEC filings and other public reports. The private-label placements, on the other hand, represent mortgages that have been aggregated on the secondary market by private investors and the pooled trusts of these assets are normally not subject to any SEC reporting or filing requirements. The private placement MBS’s also normally offer multiple forms of investments and create these instruments by splitting the income and principal aspects of the MBS trust into many different segments or tranches. The GSE’s have historically purchased for securitization only traditional mortgage products but in recent years have expanded into a variety of areas such as loan size, higher loan-to-value loans, alternative mortgages (ARMS, Hybrid ARMS, Interest Only ARMS, etc.). The private label aggregators, on the other hand, have purchased all of the others including Alt-A, sub-prime, etc.

At his point, you might ask what does any of this have to do with consumer mortgages and Chapter 13 bankruptcy cases. Well, in short, in the words of the Rapper Puff Daddy1, “It’s all about the benjamins, Baby.”* The problem arises out of the fact that in most cases the “income” for servicing a mortgage is “fixed” at the time of securitization. The “fixing” of this compensation is based on historical financial models of the pooled mortgages that make certain assumptions on default rates, foreclosure rates, the ability to market REO (real estate owned) properties, and the like. If these projections are not accurate, then the costs of servicing an above average pool of defaulted mortgage loans may be a money losing proposition for the servicers. And there is a fine margin in the mortgage servicing business between operating in the black or in the red.

One of the most startling statements about these revenue reduction problems that this writer has seen was one reported in the August 2005 edition of Mortgage Banking. Mortgage Banking is published monthly by the Mortgage Bankers Association of America and touts itself as “the magazine of real estate finance.” In an Article by Thomas J. Healy, a Certified Mortgage Banker employed by HanoverTrade Inc., the following statement is made:

“Because servicers average approximately $60 per loan per year in net profit, it does not take much in the way of additional non reimbursable inspections/collections/foreclosure costs to wipe out the profits on a lot of loans.”

This statement is supported by a “cost of servicing” survey that is being conducted by the Research Department of the Mortgage Bankers Association of America. Marina Walsh, the Director of this Department, was recently quoted as saying that “in general, servicing costs [for subprime mortgages] were about three times that of the prime side.” Ms. Walsh went on to state that when subprime loans go into default, the servicing costs are 4.5 times higher than for defaulted prime loans.

These quotes and these statistics remind me of some advice I received about 30 years ago from a veteran personal injury attorney. We were about to settle a very large medical malpractice case and our fee was based on a percentage of the total recovery. I remember asking the veteran, “How much is 33% of that settlement?” He responded as follows: “I don’t know for sure but 33% of a lot is a lot!” Well, in order to enhance their default servicing revenues, mortgage servicers “involved in” consumer bankruptcy cases have created all sorts of new fees and charges that are not assessed against the investors (the holders of the certificates in the pooled trusts, who will not pay these fees) but against the poor Chapter 13 debtors.

What type of fees are we talking about? Well in Mr. Healy’s article, he writes about inspections. What type of inspections is he referring to? I guess the best place to start would be with Gerald Stark, a civil engineer for whom I filed a Chapter 13 case about 10 years ago. Gerald had a mortgage loan that had been securitized by FannieMae and was being serviced by Crestar Mortgage Corporation. The mortgage was current on the petition date and remained current during the course of the plan. Notwithstanding the Chapter 13 filing, Crestar continued to send monthly billing statements to the debtor. It was not the billing statements that concerned Gerald but the $9.00 additional fee added to his statement each month designated as “other charges.” Mr. Stark called Crestar numerous times about these charges and was told everything from “we have no idea” to they are just “bankruptcy fees.” Mr. Stark took the matter up with me when the total amount of the monthly property inspection charges reached $135.00.

Mr. Stark subsequently filed a motion for sanctions against Crestar for violations of the automatic stay. Crestar admitted that it had caused the home to be inspected once per month so as to make sure it had not been vacated, which was curious in itself since the debtor at all times remained current on his mortgage payments. If Gerald had abandoned his home, you would assume he would have stopped making the mortgage payments.

The property inspection fees in Stark’s case were allegedly paid to third parties who would simply ride by the house and file a written report indicating such things as the grass was mowed. Crestar’s defense to Gerald’s motion was that, as servicer, it was only acting in compliance with the Mortgage Servicing Guidelines issued by FannieMae. In rejecting this defense, and holding in favor of the debtor, the Bankruptcy Court stated: “The $9.00 monthly inspection fee that Crestar imposed on the debtors in this case was in effect a monthly bankruptcy ‘monitoring fee’”. Stark v. Crestar Mortgage Corp., 242 B.R. 866, 871 (Bankr. W.D.N.C. 199). The Court went on to hold that “since Crestar attempted to collect these ‘inspection or bankruptcy monitoring fees’ from the debtors while the stay was in effect, by adding fees to the debtor’s monthly statements, Crestar violated Section 362(a)(3).” Id. at 873.

Gerald Stark’s case turned out to be the tip of a very large ice-berg of unlawful and illegal mortgage servicer fees in consumer bankruptcy cases. The next case that came to light involved the practice of advancing various sums of money against the mortgage for the costs of alleged legal fees related to the filing of a proof of claim in a Chapter 13 case. Samuel and Melinda Smith filed a Chapter 13 case in 2000 (W.D.N.C., 00-31220) and scheduled a secured debt to TMS Mortgage, Inc (now HomEq). TMS filed a proof of claim that included the sum of $125.00 for “legal fees related to the preparation and filing of the claim.” TMS admitted that it had never filed a motion under Code Section 506(b) or Bankruptcy Rule 2016 for approval of this fee. About the same time, Jason and Sherri Tate, who had filed a Chapter 13 case in 1997 (W.D.N.C. 97-32126), noticed that the proof of claim on their home mortgage filed by Nationsbanc Mortgage Corporation (now Bank of America) included the sum of $125.00 for “bankruptcy fees”. Tate v. Nationsbanc Mortgage, 253 B.R. 653,660 (Bankr. W.D.N.C 2000). Nationsbanc’s defense was that it had outsourced the proof of claim process to a law firm in Texas and the $125.00 was a reasonable fee for their services. The charge was a flat fee that the lawyers charged per case, per claim.

In rejecting these arguments, the Court in Smith and Tate found these attorney fees to be procedurally “per se unreasonable.” Id. at 665. Specifically, the Court noted that Rule 2016 sets forth “a straight forward methodology for requesting payment of attorney fees. The rule applies to any person or entity seeking compensation for services or reimbursements of expenses from estate assets.” Id. To the Court, it seemed pretty simple: 11 U.S.C. Section 506(b) authorizes the payment of legal fees to secured creditors who seek such fees upon the filing of a proper application with adequate notice; and, the Court has authority under 11 U.S.C. 105 to enforce a failure or refusal of a creditor to so comply. Id. at 668. In concluding the decision in Tate, the Court stated: “In summary, Section 105 authorizes this Court to take whatever action is necessary to enforce the Code’s provisions. The bankruptcy court is entitled to exercise its powers under the Code to restrain a creditor from overreaching. To do otherwise would allow Nationsbanc to perpetuate a fraud on the Court and other parties in interest.” Id. at 669.

Unfortunately, the only thing the Mortgage Servicers appear to have learned from any of their cases is that the vast majority of Chapter 13 debtors and their attorneys do little or nothing about these illegal fees and charges. As a result, it is actually profitable to “perpetrate a fraud” on the Bankruptcy Courts, the Bankruptcy Trustees, the attorney for the debtors, and of course the debtors. A good example of these practices can be found in a trilogy of cases presented to the Bankruptcy Court in New York in November of 2002. In Re Gorshtein, 285 B.R. 118, 120 (Bankr. S.D.N.Y. 2002).

One of the Gorshtein cases was a Chapter 13 case, which had been filed by Mandy Abrue in July of 2000. On February 7. 2001, Fairbanks Capital Corp. (now Select Portfolio Servicing) filed a motion for relief from stay in which it alleged that “no post-petition payments have been received from the Debtors.” Id. The debtor objected and provided proof that all these payments had been made. The motion was thereafter withdrawn. Exactly one year later Fairbanks filed a second motion for relief from stay in which it made the same allegations as the first motion (no payments had been made on the mortgage since filing). This second motion was filed by the same attorney who filed the first motion. Once again the debtors objected and provided proof of all post-petition payments. Fairbanks explained that due to some type of internal accounting function the motions had been filed because the payments had been placed “into a debtor’s suspense account” and therefore they had never been applied to the mortgage loan. Id. at 123. (FN2). The use of various forms of “suspense accounts” by the mortgage servicers deserves a separate Chapter. The accounts, in short, allow the servicers to “hide payments” and then raid the accounts to pay themselves bogus fees and charges.

The Gorshtein court imposed sanctions on its own motion pursuant to Bankruptcy Rule 9011 in all three of the consolidated cases including the one involving Fairbanks. The Court noted that whether “the cause of the false certification [of a serious payment default in each case] should be labeled intent to deceive, gross negligence, incompetence or mere inadvertence is indeterminable and, in any event, it really does not matter. It does not matter because the result is the same for the debtor and the judicial process, which will be victimized by the misstatement if for any reason the debtor fails to respond timely to a baseless motion.” Id. at 126.

Fairbanks learned little if nothing from the Court in Gorshtein. On July 16, 2002 the Bankruptcy Court for the District of Massachusetts entered a judgment for sanctions against Fairbanks (including rescinding the mortgage) in the case of Pearl Maxwell, an 83 year old woman with minimal schooling and limited financial recourses. This case provides a textbook illustration of the extent to which the mortgage servicing industry is out of control.

During the Maxwell case, Vince Brando, who identified himself as a Special Default Technician, testified that “ Fairbanks buys loans in bulk without checking to ascertain whether each loan is accompanied by proper documentation.” Maxwell v. Fairbanks, 2002 W.L. 1586325 (Bankr. D. Mass. 2002). Mr. Brando testified at one time Fairbanks paid $129,344.00 for the Maxwell loan but admitted that Fairbanks at another point claimed to have paid $175,955.00. In trying to explain this and other inconsistencies in the amount of the default, the principal balance owed, the corporate advances and the use of suspense accounts, Mr. Brando indicated that “Fairbanks has no documents in its possession to substantiate payments of that amount, and Fairbanks cannot identify any account, fund or other source of monies from which that amount was paid.”

Brando later testified that rather than purchase the mortgage Fairbanks actually only acquired the servicing rights. When questioned about the payment history, he said that Fairbanks, “never had the prior payment history from the prior servicer.” He added that “he could not say what happened when the prior lender owned the loan.” And, when pressed how Fairbanks could determine the amount owed, the amount of arrears, or the current payment status without a payment history, he said: “I go off of whatever the computer has for me and what it offers me, because that’s all the information we would have. No one would have any more than that.” Id. Fairbanks, of course, was later involved in a consumer class action and was named in a Fair Debt Collection Act enforcement proceeding filed by the FTC. In addition to agreeing to pay more than $56,000,000.00 in the class action, Fairbanks also agreed to terminate the CEO and president, and to terminate many officers, attorneys, agents, and employees.

The abuses of the mortgage servicers have been described by many knowledgeable commentators as “predatory mortgage servicing.” This term does not do justice to the current practices of these parties. These practices are beyond predatory in that they constitute more of a premeditated plan to ignore the entire bankruptcy process. The actions of these mortgage servicers in consumer bankruptcy cases are nothing more or less than an intentional abuse of the judicial process and the rule of law. It is also part of a pervasive pattern of chicanery, fraud, trickery, deceit, double-dealing and just plain old-fashioned illegal conduct.

During the past 7 years I have compiled a list of my own Top 10 Mortgage Servicer Abuses. The list is reprinted below along with representative cases if applicable:

1. The systematic and universal creation of junk fees such as monthly property inspections, monthly property preservation fees, broker price opinion fees, proof of claim preparation fees, review of Chapter 13 plan fees, and other similar and related charges. Case Examples: In Re Coates, 292 B.R. 894 (Bankr. D. Ill 2003) and Dawkins v. Chase Manhattan, unpublished Slip Opinion, Case No. 99-40552. (Chase was actually seeking over $11,000 in attorney fees for simply a motion for relief from stay that Chase lost).

2. The systematic failure to disclose any of the junk fees during the pendency of the Chapter 13 case by way of the filing of a proper Rule 2016 Fee Application with adequate due process notice and the right to object. Case Example: Tate v. NationsBanc Mortg. Corp. (In Re Tate), 253 B.R. 653 (Bankr. W.D.N.C. 2000); Harris v. First Union Mortg. Corp. (In re Harris), 2002 Bankr. LEXIS 771 (Bankr. D. Ala. 2002) (awarding $2,000,000 in damages).

3. The sinister collection of these fees post-discharge in Chapter 13 cases when the debtor no longer has the benefit of a bankruptcy attorney or any other party who can review a payoff statement for accuracy. Since many Chapter 13 debtors are eligible to refinance their mortgage loans after a Chapter 13 discharge, many of these charges are secretly collected at closing. And, most of the software systems used by the servicers are programmed to automatically download all of the fees and charges held in “suspense” into a payoff quote.

4. The use of these fees to create negative payment histories that result in motions for relief from stay. The system developed by the servicers is both complex and simple. The servicer establishes a software program that automatically adds a late charge to any post-petition payment based solely on the pre-petition default. The system is also designed to transfer any post-petition payment that does not include the “secret late fee” into a suspense or forbearance account. The funds in these accounts are obviously not applied to the post-petition mortgage payments. The debtor receives no interest on these funds and the suspense account is not a trust account. In many instances, the servicers will raid the suspense accounts to pay the unlawful corporate advances and other undisclosed fees and charges.

5. As the court noted in Gorshtein, the attorneys for the mortgage servicers are guilty of the repeated and systemic filing of false representations of defaults in motions for relief from stay. The attorneys know or should know that the data they are receiving from the servicers is not accurate or otherwise reliable; yet, in order to keep a “good client” they continue to accept the cases and file the motions.

6. The attorneys for the servicers who do ask for court approval of their legal fees in connection with a motion for relief from stay are also guilty of making false representations to the Court, the Trustee, the debtor, and the attorney for the debtor. These false representations relate to the nature and extent of their attorney fee agreements with the servicers. For example, many courts have a presumed no-look fee of $450.00 for a motion for relief from stay plus the filing fee of $150.00. Many attorneys for the servicers agree to these fees with full knowledge that their firm has been paid $850.00 plus the $150.00 filing fee by the servicer and that these “actual” fees and not the court approved fees will be charged back to the debtor’s account.

7. The creation of bogus “escrow” accounts to fund unlawful corporate advances. The obvious intent is to use these “escrow accounts” to hide the improper application and disbursement of funds from the debtor’s contractual payments and from the Trustee arrearage payments.

8. The practice of including undisclosed legal fees in attachments to proofs of claim and then inserting language in a hidden addendum that the failure of the debtor to object to these fees constitutes a waiver, estoppel, or res judicatta defense. See Slick v. Norwest Mortg. Inc. (In re Slick), 2002 Bankr. LEXIS 772 (Bankr. D. Ala. 2002 ).

9. The placement of forced-place insurance with a captive company (i.e., a wholly owned or related subsidiary) when debtors have such insurance. This triggers an escrow review, an enhanced payment, and more money for the suspense accounts.

10. The advancement of funds against the debtor’s mortgage loan for monetary damages actually paid to the same debtor for violations of the bankruptcy law. The servicer will also charge the debtor for the attorney fees incurred in defending such action. Case Example: In Re Riser, 289 B.R. 201 (Bankr. D. Fla. 2003).

*The writer is fully aware that Puff Daddy is currently known as “Diddy” per his request, but thought Puff Daddy to be the more accurate name for such an old school song reference.

Mr. Gardner received his undergraduate degree from the University of North Carolina at Chapel Hill in 1969 and graduated with high honors from the UNC School of Law in 1974. Among others, he was a member of the Law Review, President of the Student Bar Foundation and elected to the Order of the Coif. Following graduation, he served as law clerk to the Hon. William H. Bobbitt, the late Chief Justice of the North Carolina Supreme Court, and to the Hon. William Copeland, an Associate Justice.

He opened a law practice in Shelby, NC in 1977 and currently limits his practice to consumer bankruptcy issues and related law.

Gardner was named the Outstanding Consumer Lawyer of 2004 by the National Association of Consumer Bankruptcy Lawyers and was elected a Member of the North Carolina Legal Elite by Business North Carolina in December of 2004. He is a long-time member of NACBA and NACA and a frequent national speaker on bankruptcy law and consumer representation.

4closureFraud

“It’s actually been happening for a year or more in large numbers. Why the media hasn’t picked up on this story is a good question to ask…

I don’t think anyone realizes how big this area of fraud actually is or could believe that it’s truly happening. The biggest reason is probably because the judicial system is a player in this area of fraud. Not as an active participant but more as a guilty bystander. In about half of the states in the Union, foreclosures must be brought in a lawsuit in court, otherwise called judicial states. One would think that in non-judicial states, it would be much easier to get away with the fraud because the courts are not involved usually. Sorry to say but it might even be easier to commit Foreclosure Fraud in judicial states because no one’s really asking any questions in these foreclosure cases as I think that just about anyone would automatically assume that the Judicial System would exert much more quality control to prevent such massive fraud to work its way through the system. Guess again…

Statistically speaking, 98% of all foreclosure cases, judicial or non-judicial, go uncontested by the borrower. In other words, the borrower does nothing whatsoever to defend themselves in the foreclosure process. In a judicial state, an uncontested foreclosure complaint results in a Default Judgment against the borrower/defendant. Essentially, any and all claims made by the Plaintiff is accepted as true and legitimate at face value. The presiding judges, at least here in Florida, are doing practically nothing to inspect the merits of the case based on the documents produced – which, by the way, is very little – or the actual authenticity of the documents that are produced. Yes, they are slammed and overrun with foreclosure cases. No, it’s no excuse to deny citizens due process.

Here in Florida, 80-90% of the cases are being filed without any evidence of the debt, which is the original Promissory Note, not some early copy of it. Take a sampling of any 10 or 100 cases filed in court and you’ll find this to be true. In other words, a company/institution is coming into court, suing a borrower and alleging that the borrower owes them $_______. Yes, really fill in the blank… and they are producing NO DOCUMENTARY EVIDENCE that this allegation has any truth to it.

Oh, but it gets better. They are alleging that they lost the Note (or it was destroyed). Hmmm… if I gave you a $1000 check, would you lose it? How about if I gave you a $50,000 check? How would you treat that little piece of paper? But lo and behold, these institutions are saying that in 80-90% of the cases they have Lost the Notes! Now, let’s put this in perspective… in January 2009, Lee County, FL alone had about 2200 foreclosure cases filed. So let’s do the math together, shall we? That would put us at over 1700 cases where the Notes were mysteriously LOST! And that’s just one month’s worth folks. Now anyone with just a bit of common sense would say, something’s fishy with this. No? But most judges seem to have taken no issue with this. I mean, doesn’t this very fact make you, the reader, say to yourself, “this is not right, something’s up here, there should be an investigation into this.” But no, our judicial system seems to have no problem with this or even ask the deeper question as to “why?”

But it gets better… not only have they “lost” the notes, but the mortgages that were “recorded” in public records after closing (to declare to the public of who has a lawful lien on this property) are in someone else’s name. Let’s call them “ABC Lender.” So ABC Lender is the “mortgagee” of record in the public records. But ABC Lender is not the Plaintiff suing for Foreclosure! No, it’s XYZ Lender who is the Plaintiff; and in XYZ Lender’s Foreclosure Complaint, they allege that they are the owner and holder of the Note (that was lost) and the mortgage was assigned to them. Problem is (besides no note of course) is that there’s no Assignment of Mortgage recorded in Public Records; oh and no Lost Note Affidavit either, which by the way is supposed to be required.

Public records still show ABC Lender as the mortgagee. More than that, XYZ Lender/Plaintiff produces that very mortgage (which they can print online from the Clerk of Court’s website) in their Foreclosure Complaint and then simply states, for the record, that the Mortgage (in ABC Lender’s name) was assigned to them. But no assignment is recorded NOR is an assignment even produced in the foreclosure case in at least 50% of the cases. And when we do see an Assignment produced, lo and behold, you know who drafted that Assignment of Mortgage? Allow me to answer that… it’s the law firm that filed the foreclosure complaint for the Plaintiff. How about that, so you’re telling me that now foreclosure law firms are also in the business of transferring mortgages and notes? I think not. But this is exactly what is happening folks. Sure as my fingers are typing this post.

Oh, but I’ll do you one better… but before I do, all of what I just stated above is enough for XYZ Lender to be granted foreclosure in 98% of the cases because these ALLEGATIONS by XYZ Lender are never even challenged by the borrower/defendant. So the court places the proverbial RUBBER STAMP on this fraud and away you go… “NEXT” as most Florida Judges would say… all in about 15 seconds in their self-proclaimed ROCKET DOCKETS. Nice.

So back to doing one better… in these 2% of cases where the borrower does even a little something to defend themselves or better, has a competent attorney represent them against this FRAUD, we would ask the Plaintiff to actually prove their case. You know, “excuse me but I don’t think your claims are true Mr. XYZ Lender. Yes, I borrowed and owe the money to someone, but I have no idea at all who YOU are and I don’t think I owe the money to you and I don’t think that you have any right whatsoever to be here in this court suing me and trying to take my home away from me.” That’s how I would say it at least but attorneys are little more verbose than me…

So guess what these Plaintiff/XYZ Lender’s come back with to that request… you’re going to love this… “If it will please the court, your honor, these requests are out of line and merely meant to ’stall’ the process. The defendant hasn’t paid their mortgage in ____ months your honor; and this request for us to disclose who the real owner of the mortgage and note is proprietary information and we are not required to disclose that information.” Oh, I’m sorry, I thought you alleged in your original complaint that YOU were the owner and holder… now someone else is but you can’t tell us? Hmmm. By the way, 15 U.S.C. 1641(f)(2) says that the Servicers are under federal obligation to disclose the true owner of the obligation. Read the federal law here! Scroll down to paragraph “F” part 2.

Yep, you’re tracking with me now…. it gets even better. Somehow, by some miracle of St. Mary, mother of Jesus, in some of these cases, the Note magically appears! Oh, thank heaven, the Note has appeared. So XYZ Lender puts the court and everyone else on notice with a “Notice of Filing Original Documents” in the court record. To the unsuspecting citizen, this Note, purportedly a copy of the Original Note, sure does look the part. Never mind that one of these Notes can be re-created out of thin air. Have we Alzheimer’s this bad folks? I mean, what gives? Have we not been talking and ranting and raving as a country about all the FRAUD that occurred in the mortgage industry and WALL STREET these past 7-8 years? Does no one think that these Notes aren’t really being re-created. I mean, XYZ Lender did swear before the court that the Note was Lost. Was that a lie or is the Note they are now producing a fraud? I mean, which one is it? Or is our judicial system going to let them do both… Lie and commit Fraud that is.

But you see, I have a little more knowledge about this whole “SECURITIZATION THING” than the unsuspecting homeowner and probably even these foreclosure attorneys representing these financial institutions. You see, since the mid-80’s when the Secondary Mortgage Market Enhancement Reform Act of 1984 was enacted, 99% of all residential mortgages have been securitized. The opposite of a Securitized Loan is what we call a Portfolio Loan. These are our 2 options folks… it’s either a Portfolio Loan or it was a Securitized Loan. Your honor, it’s either Option A or Option B. Not BOTH.

So let me break this down into byte sized pieces. A Portfolio loan is a loan where ABC Lender makes the loan (ie. lends the money) and keeps that loan in their “portfolio” for the life of the loan. ABC Lender is going to keep the loan, service the loan and manage it until it is paid off. This “portfolio lending” thing is a DINOSAUR folks. This is a bona fide fact.

So, Option B, your honor, is this thing we call “Securitization.” And yes, your honor, I expect that we all take the time to UNDERSTAND IT because these thousands of CASES before your court involve PEOPLE, human beings (the same people who elected you by the way) and their lives, and their credit and their liability if this ‘aint done right.

Sorry about that, as you might guess, I am perturbed with the “pleading ignorance” of the courts or worse “I just don’t care” judges who’s pat answer is that “the borrower/defendant hasn’t paid their mortgage in 6 months so throw justice and matters of law aside because they’re all a bunch of deadbeats. I read the Wall Street Journal article on Feb. 18, 2009. We can all read between the lines your honor… Now let me say this real quick before I give a quick overview of securitization and the applicability of it to foreclosure cases… Not all judges are created equal. There are some very good one’s out there who care about the law and due process and making sure that the law is actually followed. For those judges out there who aren’t letting these issues just get swept under the rug because it’s so damn “inconvenient” – all these foreclosure cases, -we thank you and we hope you’ll see to it that more of your peers adopt the same position.

By the way, the question that the judges referred to in the Wall Street Journal story asked, “Are you paying your mortgage and are you living in your home?” – these 2 questions are completely inappropriate and immaterial to the case and matters of law. If I’m a homeowner and I don’t know who the heck owns my mortgage and my inquiries into this fact go unanswered, then I’m not paying ANYONE until I figure this out already! So if I”m before that judge my answer is very clear, “Excuse me your honor but that question is completely immaterial to my case before you. I owe the money to someone but I dispute the assertion by the Plaintiff that I owe the money to them.

I have asked them to provide valid and authentic documentation that I in fact owe them the money and they have failed to provide that documentation. The documentation that they have provided appears to be a complete fraud on this court and therefore I would humbly request your honor look into the material facts in this case, not whether or not I’m paying someone I don’t know even exists or if I’m living in a home that I have valid title to.” – and Judge G. Keith Cary, the Chief Judge in Lee County said, “A guy hasn’t paid his mortgage in a year, what’s there to talk about?” – well your honor, I believe I’ve presented plenty to talk about. If not, let me continue…

Ok, securitization and how it applies to a judicial foreclosure case. In securitization there are specific entities who are the “players” in this process. Not all entities are created the same because they have different ROLES in the securitization process. Roles: Originator, Sponsor, Master Servicer, Depositor, Issuer, Trustee and Custodian are the main ones. We also might see a “Special Servicer” in the mix here and there. The Originator is ABC Lender in the above fictitious case I mentioned. XYZ Lender from above is the Sponsor who usually serves as the Servicer as well.

Folks in 99.9% of these loans, the Trust owns the loan. The Trust is comprised of several to several hundred investors who own a “piece” of the loan. But more than that… EVERY loan including the specific loan in our fictitious case above has been bought and sold NO LESS THAN 3-4 times. When a Note is sold/transferred (and it is a true sale by the way), the Note MUST be endorsed, just like a check. From one payee to the next. IF the loan was securitized and it is very safe to assume that every loan is/was, there will be NO LESS THAN 3 endorsements on the actual, ORIGINAL note which has the borrower/defendant’s wet signature on it.

So when XYZ Lender produces the “Original” Note for the court and it has NO endorsements on it, it’s what we call a FRAUD folks – one way or another, it is NOT the original nor is it a copy of the original note OR, in the alternative, XYZ Lender lied to the SEC, the Securities and Exchange Commission AND the IRS. You see, in securitization, all of this activity MUST be disclosed. No, it’s not proprietary or confidential, it’s PUBLIC DISCLOSURE. These documents filed with the SEC are very specific. The players involved are all disclosed. Their ROLES are disclosed, the CHAIN OF OWNERSHIP of the loans in the Asset Pool is disclosed. The governing or operative document for this loan pool is the Pooling and Servicing Agreement, and it is disclosed. These Trusts are electing to be treated as a REMIC (short for Real Estate Mortgage Investment Conduit), which provides Pass-Through Taxation on the pool cash-flow, so that the Trust avoids double-taxation. That’s disclosed and strict guidelines of the chain of ownership AND timelines of ownership must be adhered to OR the REMIC status will be/can be revoked by the IRS.

So when XYZ Lender comes into a court of law and throws all these allegations of ownership, produces nothing to speak of, and expects to take Mrs. Smith’s home from her, I suggest that our judicial system do something more than turn a blind eye and claim that is their job to “efficiently dispose” of the case – all in about 15 seconds – or worse, ask completely inappropriate questions of that homeowner. I also suggest that Mrs. Smith defend herself and I highly suggest our local and national media do more to expose what you can now call “FORECLOSURE FRAUD” because it’s happening ladies and gentleman. The SAME INSTITUTIONS that created this global meltdown through greed and fraud, who have received hundreds of BILLIONS of taxpayer dollars to bail them out of their gross (and greedy) mismanagement are NOW stealing citizen’s homes from them like a thief in the night to boot. The FBI should be investigating, prosecuting and sending these fraudsters to jail – both the bank reps/employees AND their law firms colluding with them on this massive fraud!”
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Author Info: Lane Houk has 8 years of mortgage banking and finance experience and also maintains an active real estate license in Florida. Lane has done well over 400 hours of research on Foreclosure Defense and Consumer Rights Issues in the areas of Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, RESPA and more. He has combined his research, reading and experience in the real estate and finance industries to develop resources to help others who find themselves in a tough situation. You care read more on Lane’s Educational Blog at http://www.thePatriotsWar.com

4closureFraud

On  Friday, November 6, we kickstarted the recordings of our very first EP, which will be entitled “Make My Day“. Of course, Raijin Inferno had to start by laying down the drum tracks. So, Raijin and our bassman Dick von Pound headed from their little home towns in the middle of nowhere – to an even smaller town in the middle of nowhere, Hesse, Germany. Like they say – Real creativity happens in the Hinterlands. There, our very own guitar hero Iggy has a studio and some very comfortable  couches. Which is awesome when you don’t actually have anything to do – Like Dick on that day. Really, you just want to sit there and want to smoke one cigarette at a time.

But of course, before recording starts, you have to set up the drum kit – which is fine, when your drummer is Raijin, who prefers a small but powerful rock drum setting over a hey-look-I-got-15-toms-and-25-cymbals-showoff Prog setting. The measurements are 22″ bass drum, 10″ + 14″ + 16″ toms and a 12*7″ Maple/Cherry snare, 14 ” hats, 16″,16″,18″ crash and a 20″ Ride. Just in case you wanted to know.

And it went pretty well, I mean, check out the soundcheck:

Feel free to rate

So Raijin checked and played and rocked and drummed, and after he was done it was good…

But then… the gods of Rock’n'Roll chose to test us by destroying the computer including every single track he had recorded so far.

Sure, some bands would have resignated, would have given in to fate, split up and started normal and honest lifestyles.

But where would be the fun in that? …

So Raijin remembered the old Samurai-saying stating to meet great problems with small concern, re-recorded the four songs in half the time as before – better than before! – and even with such speed that Dick could add his basslines on the very same day. (But that’s another story and shall be told another time)

So now you know that there will be four songs. But what songs?

What’s Your Name: A straight-forward kickass uptempo song with an awesome guitar solo.

I’d Die For A Party: Some Dancebeats flavoured with Rock. Just right for the club!

Get Away: The Highwaysong that will keep you going and going and going…

Childhood Heroes: Our singalong Rock Hymn – a true “bad mood killer”

Check out some pics straight from the studio where all the magic happens:

Have a nice day

with

Make My Day

I did a post a while back in which I mentioned the Ananias Project. To see that post go to: http://franksummers3ba.wordpress.com/2009/10/19/a-jambalaya-round-up-or-potpouri-post/ That October 19, 2009 post was the first of my round-ups which have since become a regular feature of this blog.  Because it was only one of several items I can reproduce everything I said about it here.

“ 9. My brothers and brother-in-law (and some other people without the good taste to be my relatives) have come out with a CD I believe is titled ”The Ananias Project”. I have not heard it but I know all of them have made beautiful music and I have enjoyed it. One of the best guitar riffs I ever heard was two of them playing together. I wish them well. You can order here: http://www.cdbaby.com/cd/ananiasproject  I hope that I did not promise WordPress not to publish commercial links, I did not really read the contract. ”

As of today I have still not heard the exact disk which you will get if you order it from CD-Baby. However, I did get to listen to one of the production studio CDs that was mostly complete.  I was impressed at what a unique musical experience it was there was live recording from several  places where Family Missions Company Missionaries have served which added color and depth to the many original pieces of music.  The raps and intros had a lot of personal feel and universal quality.  Their was a wide range of musicality and it showed that these are people serious about music who have other real connections that empower their vibe.

This is religious, spiritual and Christian but I think anyone could appreciate the work with a certain attitude and be glad to have this piece in your collection. You may not  have heard of Joseph Summers, Kevin Granger and Sarah Summers Spiehler Granger or Sheila Aggresta or any of the others on these tracks but you can hear the fact that there is quite a bit of both musical training and popular audience experience in these digits your machine is reading.

One of the things that impressed me the most is that these artists and especially my brother-in-law Kevin Granger did much of the mixing, equalizing, editing and production. In my opinion much of the CD is extraordinary in its perfection.

There is a sense of a debut album by people not on a big label — although some members have had there CDs distributed before under various names but this is not raw. It is Christian Indie and contemporary fusion folk in a post deconstructionist milieu but it is not amateurish. These people have gone surely where they wished to go. We must now see if they  can connect with the listeners who connect with their music and art.