Moller v Chase Deutsche Overview of case as of 7-28-2014This demonstrates the ingenuity of Chase counsel in using circumstantial evidence as a means of proof some degree of standing.. RULE 806. ATTACKING AND SUPPORTING THE DECLARANT: When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. Bottom line of Conclusion: If the Court concurs and finds that the Trust has only a security interest in the Mortgage Pool Assets, then the Depositor, Washington Mutual Mortgage Securities Corp. (“WMMSC”), may be the rightful owner of Moller’s Mortgage Loan providing, of course, that WMMSC can demonstrate it acquired the Mortgage Loan from Washington Mutual Bank, FA in the first place; and that it paid consideration for it as required by Article 9 of the UCC. Since the Trust paid WMMSC by issuing securities which, on a pro-rata basis, exceeded the principal amount of Moller’s Mortgage Loan, WMMSC would be required to repurchase it as provided for in the Pooling and Servicing Agreement before it can acquire status as the Note Holder. My research revealed that Washington Mutual Mortgage Securities Corp. is currently subject to repurchase demands from Deutsche Bank for all 2406 of the mortgage loans originated by Washington Mutual Bank that were securitized into the WaMu Mortgage Pass-Through Certificates Series 2003-AR3 Trust. [See Analysis: pp. 23-25, ¶¶ 37-39] JPMorgan Chase Bank, N.A. (“JPMC”), the Servicer for the Trust, realized that proving these transfers actually took place would be extremely difficult if not impossible and so, it took a shortcut. On April 10, 2013, in an attempt to mask the “securitization fail” described above, JPMC prepared, executed, and subsequently recorded a Corporate Assignment of Deed of Trust (“Assignment”) which purports to transfer Moller’s Mortgage Loan from the FDIC as Receiver for Washington Mutual to Deutsche Bank as Trustee for the Trust. [See Abstract: p. 9 & Exhibit L] For all of the reasons explained in painstaking detail above, I concluded that the Assignment is a nullity; the transaction it purports to represent did not and could not take place in reality. This Assignment is fictitious; it is a self-dealing breeder document prepared, executed and recorded by JPMorgan Chase Bank, N.A. under false pretenses so that it could institute a non-judicial foreclosure action and seize Moller’s Property on behalf of the Trust. By definition, this Assignment is void ab initio. [See Analysis: pp. 28-36, ¶¶ 55-91] JPMorgan Chase Bank, N.A.’s practice of manufacturing false and fraudulent foreclosure documents and enlisting robo-signers to execute them is against public policy and is prohibited by the Joint Federal Regulators’ Cease and Desist and Consent Order of April 13, 2011; the National Mortgage Settlement of April 5, 2012; and the Independent Foreclosure Review Settlement announced on February 28, 2013. [See Analysis: pp. 36-38, ¶¶ 92-102] Due to the complexities of this matter and the competing interests among Deutsche Bank National Trust Company, JPMorgan Chase Bank, N.A., and the Federal Deposit Insurance Corporation, the subject Mortgage Loan cannot be foreclosed non-judicially as it is unclear who, if any of these entities, has the right to enforce the instruments. [See Analysis: pp. 22-25, ¶ 34-39] Borrower Lorraine Mary Moller 716 Spruce Street, Boulder, Boulder County, Colorado 80302 _________________________________________ Lender / Nominee Washington Mutual Bank, FA _________________________________________ Assignee WaMu Mortgage Pass-Through Certificates Series 2003-AR3 Trust > Deutsche Bank National Trust Company serves as Trustee. The FDIC sold the banking subsidiaries, certain assets, and all mortgage servicing rights to JPMorgan Chase Bank, N.A. (“JPMC”) on September 25, 2008. Executive Summary On January 17, 2003, Lorraine Mary Moller (“Moller”) entered into a consumer mortgage transaction with Washington Mutual Bank, FA (“Washington Mutual”) in which she borrowed $500,000.00 in order to refinance her home located at 716 Spruce Street, Boulder, Boulder County, Colorado 80302 (“Property”). Moller has owned and occupied the Property as her primary residence since June 30, 1994 (twenty years). Unbeknownst to Moller, on February 25, 2003, Washington Mutual Bank, FA and its affiliate, Washington Mutual Mortgage Securities Corp., securitized Moller’s Mortgage Loan into the WaMu Mortgage Pass-Through Certificates Series 2003-AR3 Trust over which Deutsche Bank National Trust Company serves as Trustee. On September 25, 2008, the United States Office of Thrift Supervision seized Washington Mutual Bank from Washington Mutual, Inc. and placed it into the receivership of the Federal Deposit Insurance Corporation (“FDIC”). The FDIC sold the banking subsidiaries, certain assets, and all mortgage servicing rights to JPMorgan Chase Bank, N.A. (“JPMC”) on September 25, 2008. On November 22, 2012, Moller became aware of reports that “certain portfolio loans” allegedly acquired by the FDIC as Receiver for Washington Mutual had not been transferred to JPMC. Concerned that her payments were not being made to the proper party, Moller sent JPMC a demand for “full disclosure of the name, address, and phone number of the bank or investor that owns this account.” JPMC’s response was, essentially, to brush off Moller’s demands and institute non-judicial foreclosure proceedings. After conducting a full forensic review of the documents and records described herein, I, Marie McDonnell, concluded that the attempted foreclosure of the Property is wrongful for the following reasons: 1. From March 1, 2003 (the first payment due date) to November 1, 2012, Moller maintained her mortgage obligation in good standing. 2. After sending notice to JPMC on November 22, 2012, Moller ceased making payments in order to mitigate the risk of further loss to herself, and to the real party in interest, while she attempts to ascertain the identity of the current Note Holder. 3. Notwithstanding Moller has withheld her payments pending the resolution of her dispute, payments have been advanced on her behalf and her loan is current. 4. The copy of the Note that Deutsche Bank attached to its Rule 120 Motion is suspicious. It appears to have been altered on page 6 of 6 by whiting out a scribble mark, and imposing an indorsement in blank from Washington Mutual Bank, FA to give the appearance it is a negotiable instrument governed under U.C.C. Article 3, which it is not. 5. The Corporate Assignment of Deed of Trust prepared by JPMC as Attorney-in-Fact for the FDIC is unauthorized, fictitious, and ten (10) years too late. On February 20, 2013, JPMorgan Chase Bank, N.A. (“Chase”) responded to a letter from Moller they claimed to have received on February 11, 2013. Attached to this letter was a copy of the Loan Transaction History; Note; and Security Instrument. (See Exhibit J. − Chase Response, 02/20/2013) In its cover letter, Chase stated that: · Chase is the servicer of this mortgage loan. · Any assignment of the Security Instrument, previous sellers, purchasers, assignors, and assignees would be a matter of public record. Please review public record for this information. · The investor for this loan is JPMorgan Chase Bank, National Association, 3415 vision Drive, Columbus, Ohio 43219, (800) 848-9136. · Some of the information requested under this section is either confidential or unavailable, and cannot be provided. On February 28, 2013, Moller caused a Notice of Dishonour to be sent to Chase claiming that Chase had failed to respond to her Notice and Demand to Validate Debt Claim, Notice of Default, and Notice of Protest. (See Exhibit K. − Notice of Dishonour, 02/28/2013) On April 10, 2013, LeShonda Anderson, acting in her alleged capacity as Vice President of JP Morgan Chase Bank, National Association as Attorney-in-Fact for Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank F/K/A Washington Mutual Bank, FA (“Assignor”) executed a Corporate Assignment of Deed of Trust (“Assignment”) which was recorded with the Recorder’s Office on April 16, 2013, as Document # 03304836. This Assignment purports to transfer the Moller Deed of Trust (but not the Note) from the Assignor to Deutsche Bank National Trust Company as Trustee for WaMu Mortgage Pass Through Certificates Series 2003-AR3 (“Assignee”). After recording the Assignment, the Recorder was instructed to return the original to JP Morgan Chase Bank, NA, C/O NTC 2100 Alt. 19 North, Palm Harbor, FL 34683.2 (See Exhibit L. − Corporate Assignment of Deed of Trust, 04/10/2013) On June 17, 2013, Aronowitz & Mecklenburg, LLP claiming to be Attorneys for Deutsche Bank National Trust Company as Trustee for WaMu Mortgage Pass Through Certificates Series 2003AR3, the Holder of the Evidence of Debt, filed a Notice of Election and Demand for Sale by Public Trustee (“Notice”) demanding that the Public Trustee sell the property. The Notice was recorded with the Recorder’s Office on June 24, 2013, as Document # 03322022. (See Exhibit M. − Notice of Election and Demand for Sale by Public Trustee, 06/17/2013) On September 26, 2013, Aronowitz & Mecklenburg, LLP filed a Response to the Court’s Order of September 16, 2013 in Support of its Verified Rule 120 Motion for Order Authorizing Sale to which it appended Exhibits A through D consisting of: (See Exhibit N. − Plaintiff’s Response to Court Oder, 09/26/2013) [sans exhibits] A. - a copy of the Fixed/Adjustable Rate Note indorsed in blank by Washington Mutual Bank, FA and the Addendum to Fixed Adjustable Rate Note that was not indorsed; B. - a copy of the Deed of Trust and Fixed/Adjustable Rate Rider; C. - a copy of the Corporate Assignment of Deed of Trust; and D. - a partial Transaction History that omits the first 5 ½ years of the accounting. At this writing, a hearing on the Rule 120 Motion is scheduled to take place on January 15th, 2014. I. Securitization Analysis Residential Mortgage Backed Securities Research (1) Using my access to Bloomberg Professional’s database of Residential Mortgage Backed Securities (“Bloomberg”), I found that Moller’s Mortgage Loan7 is presently being tracked as an asset of the WaMu Mortgage Pass-Through Certificates Series 2003-AR3 Trust (“Issuing Entity” or “REMIC” or “Trust” or “Trust Fund” or “Deal”).8 Moller is Not in Default (51) Colo. Rev. Stat. § 4-3-306 provides that: (a) Subject to subsection (b) of this section, an instrument is paid to the extent payment is made (i) by or on behalf of a party obliged to pay the instrument, and (ii) to a person entitled to enforce the instrument. To the extent of the payment, the obligation of the party obliged to pay the instrument is discharged even though payment is made with knowledge of a claim to the instrument under section 4-3-306 by another person. (52) Through my access to Bloomberg I was able to download the payment history associated with Moller’s Mortgage Loan as that is being reported to investors. I found that notwithstanding Moller has withheld her payments pending the resolution of her dispute,payments have been advanced on her behalf and her loan is current. (See Exhibit U. Bloomberg History of Moller’s Mortgage Loan, 12/29/2013) (53) It appears that Washington Mutual Mortgage Securities Corp., the Master Servicer, is advancing these payments from the credit support available through the “excess spread”27 derived from the cash flow generated by the Mortgage Pool Assets. This “waterfall structure” is delineated in the Pooling and Servicing Agreement and will continue until the credit enhancements have been exhausted. (54) As it now stands, the credit support has risen from 2.80% of the principal balance at origination, to 9.33% of the outstanding balance of the remaining 84 loans. Hence, I would expect to find that Moller’s Mortgage Loan will remain current for some time. (See Exhibit O. - Bloomberg Research Results) Identifying the Note Holder (55) In Paragraph 1 of her Note, Moller promised to pay the Lender (Washington Mutual Bank, FA) “…or anyone who takes this Note by transfer and who is entitled to receive payments under this Note” i.e., the Note Holder. (56) Uncertain of the identity of the Note Holder as that term is defined in her Note, Moller elected to withhold her December 1, 2012 installment until she could ascertain proof of who acquired all right, title and interest in and to her mortgage obligation. (57) Bloomberg reports that as of December 29, 2013, there were only 84 out of 2448 loans remaining in the WAMU 2003-AR3 Trust. (See Exhibit O. – Bloomberg Research Results, page 3, Collateral Loan Performance) (58) It seems logical that the number of investors in the Trust has also dwindled to the point where it should not be difficult or burdensome for JPMC and/or Deutsche Bank to identify the entities who claim to own the remnant consisting of these 84 loans. (59) In addition, this Deal has been subject to a 5% “clean up call” for some time now and it is entirely possible that all Certificate holders who actually funded the acquisition of the Mortgage Pool Assets have been paid off. Bloomberg also reports that the Residual Class has been paid off for some time, further calling into question “who owns what” at this stage of the game. (60) For these reasons, it is critical that Deutsche Bank disclose the identity of the “real party in interest” so that Moller’s dispute may be resolved fair-mindedly and with certainty. The Assignment Evidences A Truth In Lending Violation (65) On May 20, 2009, President Obama signed into law The Helping Families Save Their Homes Act of 2009.29 Section 404 of the Act amends the Truth in Lending Act (“TILA”) to require that a new notice be given to consumers within 30 days after the sale, transfer or assignment of the consumer’s mortgage loan. 30 The new notice requirement became effective on May 20, 2009 and applies to any sale, assignment or transfer of a mortgage loan occurring on or after May 20, 2009. (66) The new requirement has real teeth because Section 404 also amends Section 130(a) of TILA to provide that the failure to give the notice can result in liability for actual and up to $2,000 in statutory damages per violation, plus plaintiff's reasonable attorneys’ fees. Class action lawsuits can also be brought for systematic violations, subject to a $500,000 cap. (67) Thus, the instant Assignment executed by LeShonda Anderson on April 10, 2013, is subject to the notice requirements mandated by Section 131(g) of Truth In Lending Act as amended by Section 404 of The Helping Families Save Their Homes Act of 2009 effective May 20, 2009. (68) Lorraine Mary Moller maintains that she was never notified in writing by the Assignee or the Assignee’s Servicer (JPMC) that her Note and Deed of Trust had been sold on or about April 10, 2013. It was only upon her own initiative on November 22, 2012 that Moller discovered her Mortgage Loan had been sold and securitized. Separating Fact From Fiction (69) LeShonda Anderson (“Anderson”) is an employee of JPMorgan Chase Bank, N.A. at its facility in Monroe, Parish of Ouachita, Louisiana.31 (70) On April 10, 2013, Anderson executed the above referenced Corporate Assignment of Deed of Trust (but not the Note) in her alleged capacity as Vice President of JPMorgan Chase Bank, N.A. (“JPMC”) as Attorney-in-Fact for the Federal Deposit Insurance Corporation as Receiver of Washington Mutual Bank f/k/a Washington Mutual Bank, FA (“FDIC”). (See Exhibit L. − Corporate Assignment of Deed of Trust, 04/10/2013) (71) No Corporate Resolution authorizing Anderson was attached; nor was the Power of Attorney referenced therein. I performed an online search of the Boulder County Recorder’s Office but could not locate a Power of Attorney authorizing JPMC to execute documents on behalf of the FDIC. (72) I am aware of a certain Limited Power of Attorney effective September 25, 2008 in which the FDIC authorized JPMC to execute certain documents in connection with Washington Mutual loans as its Attorney-in-Fact. However, that authority terminated on September 25, 2010. Thus, JPMC must prove its authority in order to establish the validity of the Assignment. (73) The more serious problem with this Assignment is that it is a fiction; i.e., it represents a transaction that did not take place in reality. (74) As explained above, Moller’s Mortgage Loan was allegedly securitized on February 25, 2003 according to a precise set of conveyances mandated by the Pooling and Servicing Agreement. The only way that Moller’s Mortgage Loan could be conveyed to Deutsche Bank National Trust Company as Trustee for the WaMu Mortgage Pass-Through Certificates Series 2003-AR3 Trust is by following the true sale conveyances outlined in the PSA which had to be completed by February 25, 2003, or within 90 days thereof. (75) Table 2 below compares and contrasts the transfers dictated by the PSA with the documents recorded in the Boulder County Recorder’s Office.
Report "moller v chase deutsche overview of case as of 07282014"