FOLLOWING THE MONEY — WHAT TO ASK FOR AND LOOK FOR
MANY THANKS TO DAN EDSTROM
Dan has put together a list which frankly I would like him to expand. Following the money means determining the party to whom you MIGHT owe money. It certainly isn’t the pretender lender and if you can fill in the blanks on this list you will be able to show that. Remember the burden is NOT on you to prove it, the burden is on you to ASK for it in qualified written request, debt validation letter and/or discovery (interrogatories, request to produce, subpoena duces tecum, and requests for admission). If you ever get someone the pretender lender offers to answer your questions at deposition make sure you specify that you will want the person(s) who are able to answer questions about the following items on this list.
Your forensic review can only estimate the some of the data. But the closer you get to answering more and more of these questions by aggressively enforcing their obligation to answer under federal law, state law and rules of civil procedure, the closer you get to proving that the wrong party is servicing the loan, the wrong party is collecting on the loan, and the wrong party is enforcing the note, while the obligation has been altered by events outside of the report that the foreclosing party is reporting to the court. Each time they fail to give you the right person or the information leading to the names of the investors/lenders, the amount still owed on the obligation (not the note), you will get the judge increasingly interested as to why they can’t come up with information they should have had when they started foreclosure. Remember this is not about getting a free house — it is about getting answers to your questions. You might end up with a free house as others have done or you might end up with a re-structured loan on terms you can afford. One thing is sure — when you DO have all the answers, the amount due is bound to be far different than the amount they are claiming.
Laymen will be confused by my distinction between the obligation and the note. Under law, the note is only evidence of the obligation and is often confused, even in court, with the obligation itself. It is that confusion that the pretender lender are leveraging so they can keep everyone’s eye off the ball — the true amount of the obligation, not the indisputable amount written on the note. By distracting the Judge into looking only at the note, they finesse the proof requirement as to what is really owed. The fact that the real lender has been paid or settled through federal bailout, insurance, credit default swaps etc., is kept off the table as long as you fall into the trap of looking at the note (merely evidence of the obligation) instead of looking at the entire transaction through the lens of the creation and payment of the obligation from all potential sources.
ITEMS TO DEMAND IN ACCOUNTING FOR THE OBLIGATION:
– Original face value
– Beginning Notional / Principal balance
– Pass-through rate
– Principal distribution
– Interest distribution
– Total Distribution
– Principal loss
– Interest loss
– Deferred Interest
– Ending Notional principal balance
– The accrual period
– Acrrual methodology
– Optimal Interest Amount
– Interest loss
– Deferred Interest
– Interest shortfall amt
– Other income
– Accrued certificate interest remaining unpaid
Other income detail:
– Certificate class
– Prepayment charge
– Remaining excess cash flow and OC release amount
– other income distribution
Interest shortfalls, compensation and expenses (per Group)
– Current prepayment interest shortfall amt
– Compensating interest
– net prepayment interest shortfall amount
– Civil Relief act shortfall count
– civil relief act shortfall amount
– Compensation
– – subservicer
– – master servicer
Advances by master servicer
– Allowable expenses per governing document
– non-recoverable advances
Prepayment interest and Basis risk/net WAC shortfall amount (by certificate class)
– [I will leave out this section)
Collateral summary
LOAN COUNT AND BALANCE (by group)
– original laon count / scheduled principal balance
– beginning loan count / scheduled principal balance
– scheduled principal
– curtailment
– payoff
– matured loans
– repurchases (by the way this is 0 for all months reported)
– beginning aggregate scheduled principal balance of liquidations (and?) charge-offs
– ending loan count scheduled principal balance
there is more, but I will just leave it at that. None of the information is specific to any one loan as I had hoped. But, they have to keep that info somewhere (use discovery) …
Thanks,
Dan Edstrom
Dan,
This is very timely for my purposes as I have been composing my FOIA request to Fannie Mae and checking and re-checking to make sure I have all the bases covered. Thanks for all your hard work…geez, and I thought I was a good researcher…got nothin’ on you, my good man!
Thanks Neil. Here is the complete information (without most of the actual answers) of what is included in my report to certificateholders (this is LONG). It doesn’t line up exactly right so I will email it to you also.
GMAC RFC
Statement to Certificateholder
1. Distribution Summary
2. Factor Summary
3. Components Information
4. Interest Summary
5. Other Income Detail
6. Interest Shortfalls, Compensation and Expenses
7. Prepayment Interest and Basis Risk/Net WAC Shortfall Amounts
8. Collateral Summary
9. Repurchase Information
10. Loan Status Report (Delinquencies)
11. Deal Delinquencies (30 Day Buckets)
12. Loss Mitigation and Servicing Modifications
13. Losses and Recoveries
14. Credit Enhancement Report
15. Distribution Percentages
16. Overcollateralization Summary
17. Excess Cash Flow, Overcollateralization Provisions and Derivative Amounts
18. Performance Tests
19. Lender Paid Mortgage Insurance
20. Comments
Deal Name: Residential Asset Securities Corp, 2005-EMX4
Asset Type: Home Equity Mortgage Asset Backed Pass-Through Certificates
Closing Date: 11/17/2005
First Distribution Date: 12/25/2005
Determination Date: 09/21/2009
Distribution Date: 09/25/2009
Record Date:
Book-Entry: 09/24/2009
Definitive: 08/31/2009
Trustee: US Bank N.A.
Main Telephone: 800-934-6802
GMAC-RFC
Bond Administrator: Perry Bons
Telephone: 818-260-1441
Pool(s): 40197,40198
Residential Asset Securities Corp, 2005-EMX4
September 25, 2009
1. Distribution Summary
Class
CUSIP
Original Face Value
(1) Beginning Notional / Principal Balance
(2) Pass-Through Rate
(3) Principal Distribution (3)
(4) Interest Distribution (4)
(5) Total Distribution (3) + (4) = (5)
(6) Principal Loss
(7) Interest Loss
(8) Deferred Interest
(9) Ending Notional / Principal Balance (1)-(3)-(6)+(8)=(9)
2. Factor Summary
Class
CUSIP
Beginning Notional / Principal Balance Factor
Principal Distribution Factor
Interest Distribution Factor
Total Distribution Factor
Deferred Interest Factor
Interest Shortfall Factor
Ending Notional / Principal Balance Factor
Deal Factor
Group I Factor
Group II Factor
3. Components Information
(No information in report)
4. Interest Summary
Class
Accrual Period
Accrual Methodology
Beginning Notional / Principal Balance
Pass-Through Rate
(1) Optimal Interest Amount
(2) Interest Loss
(3) Deferred Interest
(4) Interest Shortfall Amount
(5) Other Income
(6) Interest Distribution (1)-(2)-(3)-(4)+(5)=(6)
Current Index Rates
Index Type
Rate
Classes
5. Other Income Detail
Class
(1) Prepayment Charges
(2) Remaining Excess Class Flow and OC Release Amount
(3) Other Income Distribution (1)+(2)=(3)
6. Interest Shortfalls, Compensation and Expenses
(1) Current Prepayment Interest Shortfall Amount
(2) Compensating Interest
(3) Net Prepayment Interest Shortfall Amount (1)-(2)=(3)
Civil Relief Act Shortfall Count
Civil Relief Act Shortfall Amount
Compensation
Subservicer
Master Servicer
Advances by Master Servicer
Allowable Expenses per Governing Documents
Non-Recoverable Advances
[Advances are made for delinquent loans and are reimbursed from borrower collections and liquidation proceeds as reported herein]
7. Prepayment Interest and Basis Risk/Net WAC Shortfall Amounts
(A) Prepayment Interest Shortfall Amounts
Class
(1) Current Period
(2) Prior Unpaid
(3) Prior Unpaid Accrued Interest
(4) Total Paid
(5) Remaining Unpaid (1)+(2)+(3)-(4)=(5)
(B) Basis Risk / Net WAC Shortfall Amounts
(1) Current Period Uncompensated
(2) Prior Unpaid
(3) Prior Unpaid Accrued Interest
(4) Total Paid
(5) Remaining Unpaid (1)+(2)+(3)-(4)=(5)
8. Collateral Summary
A. Loan Count and Balances
Original Loan Count / Scheduled Principal Balance
Beginning Loan Count / Scheduled Principal
Scheduled Principal
Curtailments
Payoffs
Matured Loans
Repurchases
Beginning Aggregate Scheduled Principal Balance of Liquidations / Charge-offs
Ending Loan Count / Scheduled Principal Balance
B. Weighted Averages
Beginning Weighted Average Gross Mortgage Rate
Ending Weighted Average Gross Mortgage Rate
Ending Weighted Average Remaining Amortization Term
Ending Weighted Average Months to Maturity
Beginning Weighted Average Net Mortgage Rate
Ending Weighted Average Net Mortgage Rate
Beginning Weighted Average Unmodified Net Mortgage Rate
Net Weighted Average Cap Rate
Weighted Average Net Rate
9. Repurchase Information
(1) Breaches of Representations and Warranties
(2) ARM Conversions
(3) Optional Repurchase of Defaulted Loans
(4) Others
(5) Total (1)+(2)+(3)+(4)=(5)
10. Loan Status Report (Delinquencies)
Delinquency Calculation Method: Office of Thrift Supervision
Current / Delinquent
Count
Scheduled Balance
Bankruptcy
Count
Scheduled
Foreclosure
Count
Scheduled Balance
REO
Count
Scheduled Balance
Actual Balance
Total
Count
Scheduled Balance
Note that the above were listed with the following breakdown
Deal Totals
Current
30 days
60 days
90 days
120 days
150 days
180 days
181+ days
Total
(and repeated with percentages)
(above repeated for Group I and again for Group II)
11. Deal Delinquencies (30 Day Buckets)
Totals
Count and % Count
Balance and % Balance
Note: the above is listed by month from 1 month to 59 months and then one entry for 60+ months
12. Loss Mitigation and Servicing Modifications
Modification
Current
Count and scheduled balance
1 Payment
Count and scheduled balance
2 Payments
Count and scheduled balance
3+ Payments
Count and scheduled balance
Foreclosure
Count and scheduled balance
REO
Count and scheduled balance
Total
Count and scheduled balance
The above is broken down by:
Modification
Capitilization
Other Modification
Total for Group 1, Group 2 and All Deals
13. Losses and Recoveries
A. Current Cycle Realized Losses
Current Period Realized Losses
Liquidations
Charge-Offs
Servicing Modifications
Bankruptcy Losses
Total
Shown with the following breakdown by Groups and Total Deals:
Loss Count
Beginning Aggregate Scheduled Balance
Principal Portion of Loss
Interest Portion of Loss
Total Realized Loss
B. Cumulative Realized Losses
Current Period Realized Losses
Liquidations
Charge-Offs
Servicing Modifications
Bankruptcy Losses
Total
Shown with the following breakdown by Groups and Total Deals:
Loss Count
Total Realized Loss
C. Subsequent Recoveries
Subsequent Recoveries
Current Period
Cumulative
Shown with the following breakdown by Groups and Total Deals:
Subsequent Recoveries Count
Subsequent Recoveries
Net Loss 1
Net Loss % 2
1 Total Realized Loss less Subsequent Recoveries
2 Net Loss % of Original Balance
D. Default Percentages
Default Loss Percentage
1 Month
3 Months
6 Months
12 Months
Life of Deal
Broken down by Group and Total with the following:
Monthly Default Rate
Constant Default Rate
1-Month MDR (Current Month) = SUM (Beginning Scheduled balances of liquidating loans) / [SUM (Beginning Scheduled loan balance) – SUM (Scheduled Principal payments)]
m-Month = 3, 6, 12, months or the life of deal to date
m-Month MDR (over M months in period where n is current month) = 1-[(1-MDRn-m+1) * (1-MDRn-m+2)*…..*(1-MDR n-1) * (1-MDRn)]^(1/m)
CDRm = 1 – [(1 – MDRm)^12], where m is number of months in period
14. Credit Enhancement Report
Hedge Agreements
Description
Provider
Termination Date
Amount Received From Provider
Amount Paid to Provider
15. Distribution Percentages
No data
16. Overcollateralization Summary
Prior Required Overcollateralization
Beginning Overcollateralization
Overcollateralization Increase (Reduction) Amount
Ending Overcollateralization Amount
Current Required Overcollateralization
17. Excess Cash Flow, Overcollateralization Provisions and Derivative Amounts
Excess Cashflow and Derivative Summary
Broken down by the following:
(1) Scheduled Unmodified Net Interest
(2) Interest Losses
(3) Subsequent Recoveries
(4) Interest Adjustment Amount
(5) Yield Maintenance / Swap Payment Amount – IN
(6) Certificate Interest Amount
(7) OC Reduction Amount
(8) Excess Cashflow Prior to OC Provisions
Overcollateralization and Derivative Amounts
Broken down by the following
Excess Cashflow Prior to OC Provisions
(1) Unreimbursed Principal Portion of Realized Losses
(2) Principal Portion of Realized Losses
(3) Overcollateralization Increase
(4) Prepayment Interest Shortfall
(5) Unpaid PPIS With Accrued Interest
(6) Basis Risk Shortfall Carry-Forward Amount
(7) Relief Act Shortfall
(8) Unreimbursed Realized Losses
(9) To Class SB Certificates
Note: Excess Cashflow Prior to OC Provisions amount takes into account any Non-Recoverable Advance Amounts from Section 6
18. Performance Tests
Senior Balance Test
Senior Certificate Beginning Balance – Actual Value
Zero Balance
Senior Certificate Beginning Balance = 0.00
Current Distribution Date >= Target Distribution
Current Distribution Period
StepDown Target Distribution Period
Current Distribution >= Target Distribution Date
Stepdown Date – Senior Enhancement Test
Current Senior Enhancement Percent – Actual value
Specified Senior Enhancement Percent – Target value
Senior Enhance Pct >= Specified Senior Enhance Pct (Actual End Balance = Target Distribution Date
Senior Enhance Pct >= Specified Senior Enhance Pct (Actual End Balance = Target Percent
StepDown Date has occurred
Senior Certificate Beginning Balance = 0.00
After StepDown Date and Senior Enh Percent >= Target Percent
Stepdown Date has occurred
Sixty-Plus Delinquency Percentage >= Target %
3-Month Average Sixty-Plus Delinquency Percentage – Actual Value
Senior Enhancement Delinquency Percentage – Target Value
Sixty-Plus Delinquency Percentage >= Senior Enhancement Delinquency Percentage Target
Trigger Event clause (b) – Realized Loss Test
Aggregate Realized Loss Percentage – Actual Value
Scheduled Loss Target Percent
Aggregate Realized Loss Percentage >= Scheduled Loss Percent
Trigger Event is in effect?
Sixty-Plus Delinquency Percentage >= Senior Enhancement Delinquency Percentage Target
Aggregate Realized Loss Percentage >= Scheduled Loss Percentage
Trigger Event is in effect
StepDown Date and Trigger Event in effect
Stepdown Date has occurred
Trigger Event is in effect
Trigger Event is in effect on or after StepDown Date
19. Lender Paid Mortgage Insurance
No data
20. Comments
ERISA Text: Each beneficial owner of any Certificate (or any interest therein) which provides credit enhancement for any other Certificate and is available in book-entry form, including a Class M Certificate, shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate (or interest therein), that either: a) it is not an employee benefit or other plan subject to the prohibited transaction provision of the Employee Retirement Income Security Act of 1974, as amended(‘ERISA’), or Section 4975 of the Internal Revenue Code of 1986, as amended (a ‘Plan’), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of purchasing any Certificate with ‘plan assets’ of any Plan; or b) (i) the transferee is an insurance company, (ii) the source of funds to be used by it to purchase the Certificates is an ‘insurance company general account’ (within the meaning of Department of Labor Prohibited Transaction Class Exemption (‘PTCE’) 95-60), and (iii) the conditions set forth in Section I and III of PTCE 95-60 have been satisfied. Any purported beneficial owner of any such book-entry Certificate (or interest therein) to whom either (a) or (b) above does not apply shall indemnify and hold harmless the Company, the Trustee, the Master Servicer, any Subservicer, and the Trust Fund from and against any and all liabilities, claim, cost or
expenses incurred by such parties as a result of its acquisition or holding of such Certificate.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Neil,
After all of the details and prospectus reading and the various layers that have been peeled like an onion so far, the most compelling question I find is the most simple:
Proof of standing.
Prove you own my note
Prove you have suffered monetary damage
Prove you have acquired either of them legally under penalty of perjury.
I suggest everyone understand everything that they can about what has transpired over the life of your loan. Research, if you can’t find something ask one of the generous people on this board. We are all here to help each other. Arm yourselves with as much as you can and make them convince you and the judge.
If they have to prove to you that you owe them the money, make them account for EVERY penny that has an affiliation to your loan or note.
If they say they own your note make them give you everything that proves it from day one.
Most of them assigned the notes to a blank entity on purpose which in some places creates a payable to bearer situation. If you do not get the original how will they prove there isn’t someone else holding it?
If you rescind, they still have to prove both to the judge in the action against you. They know and you should too.
We can find plenty of places in which they committed illegal acts but for a busy judge in just about any court be polite but be determined. Don’t settle for their answer or justification, Make them Prove it!
Don’t ever give up and keep spreading the word.
Our prayers are with you Neil for a speedy recovery!