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Editor’s Comment:

The name of Max Gardner has become a trademark for effective confrontation and dissemination of information about the greatest economic crime in human history.  His work includes “Boot Camps” which are composed of small groups of lawyers in training for the purpose of saving the homes and lives of millions of homeowners who were deceived into purchasing corrupt loan products.  Those Boot Camps are about to come to an end although Max will continue to teach in larger forums.  I suggest that any lawyer who was considering attendance at one of Max’s events decide in favor of it and to sign up immediately.  

Max has been quite open about his health conditions and while they are different from my own, I find a number of areas of commonality between us even as we approach the Wall Street monster from different angles.  I know how he feels when he has heard from the physicians that there is, “one more thing” with which he must deal.  Like Max, I am also reconsidering my role as I get older.  

Max has made it clear that he’s not going anywhere just yet but that he considers time with family and his effort in battling the banks and servicers to be his remaining priorities.  I support him in his endeavors and so should we all.

Max Gardner Personal Message to

Bankruptcy Boot Camp Graduates

The following message was sent from Max to his Boot Camp graduates on May 9, 2012.

Dear Boot Campers,

I have always been candid with you about my health issues and I will continue to be candid throughout this very personal process.  I last updated you on my health shortly before the San Antonio NACBA conference when I was suffering from symptoms consistent with previous malignant tumor growth in my lungs and bladder.  Testing did, in fact, confirm a new tumor growth but this time it was in a new organ, my liver.  My medical team has confirmed that it is the same type of tumor in the bladder and lungs, known as a Typical Carcinoid—a relatively non-aggressive cancer. After running more tests, my doctors laid out the different options for me, all with their own advantages and disadvantages.  After much thought and discussing it with Vickie, I have decided that I will not undergo any type of surgical intervention with respect to the liver tumor. Rather than surgery, we will only take the necessary medical steps to deal with the negative symptoms related to this type of cancer.  The doctors can cite national statistics for survival rates with and without the liver surgery, but because the progression of my cancer has been so unusual, they simply have nothing to compare it to and the statistics are meaningless.

I want you to know that despite the above news, I remain very optimistic. And, quite frankly, I feel very good about the decision we have made.  Life is certainly important but the quality of the life we have left may be more important.  I also want you all to know that this is not the end of the road for me.  I have a job to do and I plan on finishing what I started with your help.  Part of my purpose for fully disclosing my health situation to you at this time is to let you know the reasoning behind two decisions I’ve made.

First, I don’t plan on traveling outside of North Carolina to conduct future seminars.  Getting on a plane to travel can only increase my chances of getting sick so I plan on traveling only when necessary.  Second, beginning this fall, I will discontinue holding boot camps at the farm and hold only larger sessions where I can teach more people at a time and also take some burden off of me and Vickie.  The five-day seminars at the Farm are both physically and mentally draining for both of us.  The June 7-11 Boot Camp will go on as planned and then I will hold either one or two more  Boot Camps at the Farm this summer, which can include another re-boot if there is enough interest.  Right now the other possible boot camp dates for Lizmere Farm are July 5-9 and August 2-6.

I’ve made my decisions based on what I believe makes the most sense for me, my family and the goals I want to accomplish and I’d like you to accept these decisions without second guessing or offering advice, no matter how well intentioned.  I received hundreds of emails and calls when my health situation required me to cancel my April appearance in San Antonio and you will never know how much each one of those emails and calls meant to me and to Vickie.  We consider all of you to be a part of our extended family.

Many of you know that the late Marvin R. Wooten was my all-time favorite Judge and person and friend.  Judge Wooten had so many historic quotes that it is hard to know where to start or end with any of them.  However, when he could not grant you the relief you requested, he would always say “I’m sorry but you have come to the Goat Man for Wool.”  Well, I really and truly have goats at the Farm so in fact and in truth I may now qualify as Judge Wooten’s proverbial Goat Man but I want all of you to know that this Goat Man still has a rather large supply of wool and he intends to give it all out before the goats finally go home.

Thank you for all your support and kind words over all of these many years.

Filed under: foreclosure Tagged: Boot camps, corrupt loan products, Judge Wooten, Marvin R Wooten, MAX GARDNER
Livinglies’s Weblog

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Associated Press

The feds are burned out with a medical marijuana grower that it suspects isn’t quite taking its bankruptcy case seriously.

A federal court watchdog wants a judge to dismiss the Chapter 11 bankruptcy case of Denver-based CGO Enterprise LLC, arguing that the company shouldn’t be allowed to reorganize its finances in a way that would allow it to continue profiting from criminal activity.

U.S. trustee Richard Wieland, who patrols bankruptcy cases for the Justice Department, pointed out that CGO Enterprise executives would likely have to reorganize its operations around sales from its primary asset: $ 130,000 worth of unharvested marijuana leaves listed on the bankruptcy petition filed May 1 in U.S. Bankruptcy Court in Denver.

Any company’s Chapter 11 reorganization plan requires approval from a federal bankruptcy judge—an unlikely consent. Wieland pointed to wording in an earlier bankruptcy case that said a company should have the hope of proposing “a legally and economically feasible plan of reorganization” in his request for the court to throw out the case.

Colorado has legalized medical marijuana and regulates it heavily. A business entity that shares CGO Enterprise’s headquarters was denied a license in November to grow pot for a network of licensed retailers throughout the state.

But as states take uncoordinated steps toward recognizing the industry, the federal government still classifies the substance as a dangerous drug.

“It is well known that the cultivation and distribution of marijuana for profit would be a criminal violation of the federal Controlled Substances Act and other narcotics statutes,” Wieland said.

Wieland added that shutting down the company under Chapter 7 protection—which would require the court to appoint a liquidator—isn’t an option, either.

“Because the primary use of these objects relates to illegal activity, a Chapter 7 trustee cannot administer such assets in a manner that is consistent with law and public policy,” he said.

CGO Enterprise itself hasn’t given the court any more details about how it hopes to reorganize beyond what it said in its six-page bankruptcy petition. It’s the type of silence that can also easily get a company’s bankruptcy case tossed.

“Please don’t contact me any further regarding this,” company attorney Greg Goodman said Thursday in response to a request for comment.

In a signed order, U.S. Bankruptcy Court Judge Michael Romero has given CGO Enterprise President Vince Austin until June 14 to explain to the court why his company filed for bankruptcy and to provide more details on its operations.

The company’s bankruptcy filing shielded it from eviction; it owes about $ 800,000 to its landlords, according to court papers. Attorneys for the landlord have asked for court permission to interview Austin as part of a broader investigation.

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Editor’s Comment:

One problem with securitization in practice even under the academic model is the effect on potential enforcement of the obligation, even assuming that the “lender” is properly identified in the closing documents with the buyer of the loan product and the closing papers of the buyer of the mortgage bonds (and we’ll assume that the mortgage bonds are real and valid, as well as having been issued by a fully funded REMIC in which loans were properly assigned and transferred —- an assumption, as we have seen that is not true in the real world). Take this quote from the glossary at the back of this book and which in turn was taken from established authoritative sources used by bankers, securities firms and accountants:

cross guarantees and credit default swaps, synthetic collateralized asset obligations and other exotic equity and debt instruments, each of which promises the holder an incomplete interest in the original security instrument and the revenue flow starting with the alleged borrower and ending with various parties who receive said revenue, including but not limited to parties who are obligated to make payments for shortfalls of revenues.

Real Property Lawyers spot the problem immediately.

First question is when do these cross guarantees, CDS, Insurance, and other exotic instruments arise. If they are in existence at the time of the closing with the borrower homeowner then the note and mortgage are not properly drafted as to terms of repayment nor identity of the lender/creditor. This renders the note either unenforceable or requiring the admission of parole evidence in any action to either enforce against the borrower or enforce the cross obligations of the new cross creditors who supposedly are receiving not just rights to the receivable but to the actual note and the actual mortgage.

Hence even a truthful statement that the “Trustee” beings this foreclosure on behalf of the “trust” as creditor (assuming a Trust existed by law and that the Trustee, and beneficiaries and terms were clear) would be insufficient if any of these “credit enhancements” and other synthetic or exotic vehicles were in place. The Trustee on the Deed of Sale would be required to get an accounting from each of the entities that are parties or counterparties whose interest is effected by the foreclosure and who would be entitled to part of the receivable generated either by the foreclosure itself or the payment by counterparties who “bet wrong” on the mortgage pool.

The second question is whether some or any or all of these instruments came into existence or were actualized by a required transaction AFTER the closing with the homeowner borrower. It would seem that while the original note and mortgage (or Deed of Trust) might not be affected directly by these instruments, the enforcement mechanism would still be subject to the same issues as raised above when they were fully actualized and in existence at the time of the closing with the homeowner borrower.

Deutsch Bank was a central player in most of the securitized mortgages in a variety of ways including the exotic instruments referred to above. If there was any doubt about whether there existed pandemic lying and cheating, it was removed when the U.S. Attorney Civil Frauds Unit obtained admissions and a judgment for Deutsch to pay over $ 200 million resulting from intentional misrepresentations contained in various documents used with numerous entities and people up and down the fictitious securitization chain. Similar claims are brought against Citi (which settled so far for $ 215 million in February, 2012) Flagstar Bank FSB (which settled so far for $ 133 million in February 2012, and Allied Home Mortgage Corp, which is still pending. Even the most casual reader can see that the entire securitization model was distorted by fraud from one end (the investor lender) to the other (the homeowner borrower) and back again (the parties and counterparties in insurance, bailouts, credit default swaps, cross guarantees that violated the terms of every promissory note etc.

Manhattan U.S. Attorney Recovers $ 202.3 Million From Deutsche Bank And Mortgageit In Civil Fraud Case Alleging Reckless Mortgage Lending Practices And False Certifications To HUD

FOR IMMEDIATE RELEASE                  Thursday May 10, 2012

Preet Bharara, the United States Attorney for the Southern District of New York, Stuart F. Delery, the Acting Assistant Attorney General for the Civil Division of the U.S. Department of Justice, Helen Kanovsky, General Counsel of the U.S. Department of Housing and Urban Development (“HUD”), and David A. Montoya, Inspector General of HUD, announced today that the United States has settled a civil fraud lawsuit against DEUTSCHE BANK AG, DB STRUCTURED PRODUCTS, INC., DEUTSCHE BANK SECURITIES, INC. (collectively “DEUTSCHE BANK” or the “DEUTSCHE BANK defendants”) and MORTGAGEIT, INC. (“MORTGAGEIT”). The Government’s lawsuit, filed May 3, 2011, sought damages and civil penalties under the False Claims Act for repeated false certifications to HUD in connection with the residential mortgage origination practices of MORTGAGEIT, a wholly-owned subsidiary of DEUTSCHE BANK AG since 2007. The suit alleges approximately a decade of misconduct in connection with MORTGAGEIT’s participation in the Federal Housing Administration’s (“FHA’s”) Direct Endorsement Lender Program (“DEL program”), which delegates authority to participating private lenders to endorse mortgages for FHA insurance. Among other things, the suit accused the defendants of having submitted false certifications to HUD, including false certifications that MORTGAGEIT was originating mortgages in compliance with HUD rules when in fact it was not. In the settlement announced today, MORTGAGEIT and DEUTSCHE BANK admitted, acknowledged, and accepted responsibility for certain conduct alleged in the Complaint, including that, contrary to the representations in MORTGAGEIT’s annual certifications, MORTGAGEIT did not conform to all applicable HUD-FHA regulations. MORTGAGEIT also admitted that it submitted certifications to HUD stating that certain loans were eligible for FHA mortgage insurance when in fact they were not; that FHA insured certain loans endorsed by MORTGAGEIT that were not eligible for FHA mortgage insurance; and that HUD consequently incurred losses when some of those MORTGAGEIT loans defaulted. The defendants also agreed to pay $ 202.3 million to the United States to resolve the Government’s claims for damages and penalties under the False Claims Act. The settlement was approved today by United States District Judge Lewis Kaplan.

Manhattan U.S. Attorney Preet Bharara stated: “MORTGAGEIT and DEUTSCHE BANK treated FHA insurance as free Government money to backstop lending practices that did not follow the rules. Participation in the Direct Endorsement Lender program comes with requirements that are not mere technicalities to be circumvented through subterfuge as these defendants did repeatedly over the course of a decade. Their failure to meet these requirements caused substantial losses to the Government – losses that could have and should have been avoided. In addition to their admissions of responsibility, Deutsche Bank and MortgageIT have agreed to pay damages in an amount that will significantly compensate HUD for the losses it incurred as a result of the defendants’ actions.”

Acting Assistant Attorney General Stuart F. Delery stated: “This is an important settlement for the United States, both in terms of obtaining substantial reimbursement for the FHA insurance fund for wrongfully incurred claims, and in obtaining the defendants’ acceptance of their role in the losses they caused to the taxpayers.”

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Making sure that victims of federal crimes are treated with compassion, fairness and respect.

www.justice.gov/usao/nys/pressreleases/may12/deutschebankmortgageitsettlement.html                  1/45/16/12                  USDOJ: US Attorney’s Office – Southern District of New York

HUD General Counsel Helen Kanovsky stated: “This case demonstrates that HUD has the ability to identify fraud patterns and work with our partners at the Department of Justice and U.S. Attorney’s Offices to pursue appropriate remedies. HUD would like to commend the work of the United States Attorney for the Southern District of New York in achieving this settlement, which is a substantial recovery for the FHA mortgage insurance fund. We look forward to continuing our joint efforts with the Department of Justice and the SDNY to combat mortgage fraud. The mortgage industry should take notice that we will not sit silently by if we detect abuses in our programs.”

HUD Inspector General David A. Montoya stated: “We expect every Direct Endorsement Lender to adhere to the highest level of integrity and accountability. When the combined efforts and attention of the Department of Justice, HUD, and HUD OIG are focused upon those who fail to exercise such integrity in connection with HUD programs, the end result will be both unpleasant and costly to the offending party.”

The following allegations are based on the Complaint and Amended Complaint (the “Complaint”) filed in Manhattan federal court by the Government in this case:

Between 1999 and 2009, MORTGAGEIT was a participant in the DEL program, a federal program administered by the FHA. As a Direct Endorsement Lender, MORTGAGEIT had the authority to originate, underwrite, and endorse mortgages for FHA insurance. If a Direct Endorsement Lender approves a mortgage loan for FHA insurance and the loan later defaults, the holder of the loan may submit an insurance claim to HUD for the costs associated with the defaulted loan, which HUD must then pay. Under the DEL program, neither the FHA nor HUD reviews a loan before it is endorsed for FHA insurance. Direct Endorsement Lenders are therefore required to follow program rules designed to ensure that they are properly underwriting and endorsing mortgages for FHA insurance and maintaining a quality control program that can prevent and correct any deficiencies in their underwriting. These requirements include maintaining a quality control program, pursuant to which the lender must fully review all loans that go into default within the first six payments, known as “early payment defaults.” Early payment defaults may be signs of problems in the underwriting process, and by reviewing early payment defaults, Direct Endorsement Lenders are able to monitor those problems, correct them, and report them to HUD. MORTGAGEIT failed to comply with these basic requirements.

As the Complaint further alleges, MORTGAGEIT was also required to execute certifications for every mortgage loan that it endorsed for FHA insurance. Since 1999, MORTGAGEIT has endorsed more than 39,000 mortgages for FHA insurance, and FHA paid insurance claims on more than 3,200 mortgages, totaling more than $ 368 million, for mortgages endorsed for FHA insurance by MORTGAGEIT, including more than $ 58 million resulting from loans that defaulted after DEUTSCHE BANK AG acquired MORTGAGEIT in 2007.

As alleged in the Complaint, a portion of those losses was caused by the false statements that the defendants made to HUD to obtain FHA insurance on individual loans. Although MORTGAGEIT had certified that each of these loans was eligible for FHA insurance, it repeatedly submitted certifications that were knowingly or recklessly false. MORTGAGEIT failed to perform basic due diligence and repeatedly endorsed mortgage loans that were not eligible for FHA insurance.

The Complaint also alleges that MORTGAGEIT separately certified to HUD, on an annual basis, that it was in compliance with the rules governing its eligibility in the DEL program, including that it conduct a full review of all early payment defaults, as early payment defaults are indicators of mortgage fraud. Contrary to its certifications to HUD, MORTGAGEIT failed to implement a compliant quality control program, and failed to review all early payment defaults as required. In addition, the Complaint alleges that, after DEUTSCHE BANK acquired MORTGAGEIT in January 2007, DEUTSCHE BANK managed the quality control functions of the Direct Endorsement Lender business, and had its employees sign and submit MORTGAGEIT’s Direct Endorsement Lender annual certifications to HUD. Furthermore, by the end of 2007, MORTGAGEIT was not reviewing any early payment defaults on closed FHA-insured loans. Between 1999 and 2009, the FHA paid more than $ 92 million in FHA insurance claims for loans that defaulted within the first six payments.

***

Pursuant to the settlement, MORTGAGEIT and the DEUTSCHE BANK defendants will pay the United States $ 202.3 million within 30 days of the settlement.

As part of the settlement, the defendants admitted, acknowledged, and accepted responsibility for certain misconduct. Specifically,

MORTGAGEIT admitted, acknowledged, and accepted responsibility for the following:

www.justice.gov/usao/nys/pressreleases/may12/deutschebankmortgageitsettlement.html                  2/4

5/16/12                  USDOJ: US Attorney’s Office – Southern District of New York

MORTGAGEIT failed to conform fully to HUD-FHA rules requiring Direct Endorsement Lenders to maintain a compliant quality control program;

MORTGAGEIT failed to conduct a full review of all early payment defaults on loans endorsed for FHA insurance;

Contrary to the representations in MORTGAGEIT’s annual certifications, MORTGAGEIT did not conform to all applicable HUD-FHA regulations;

MORTGAGEIT endorsed for FHA mortgage insurance certain loans that did not meet all underwriting requirements contained in HUD’s handbooks and mortgagee letters, and therefore were not eligible for FHA mortgage insurance under the DEL program; and;

MORTGAGEIT submitted to HUD-FHA certifications stating that certain loans were eligible for FHA mortgage insurance when in fact they were not; FHA insured certain loans endorsed by MORTGAGEIT that were not eligible for FHA mortgage insurance; and HUD consequently incurred losses when some of those MORTGAGEIT loans defaulted.

The DEUTSCHE BANK defendants admitted, acknowledged, and accepted responsibility for the fact that after MORTGAGEIT became a wholly-owned, indirect subsidiary of DB Structured Products, Inc and Deutsche Bank AG in January 2007:

The DEUTSCHE BANK defendants were in a position to know that the operations of MORTGAGEIT did not conform fully to all of HUD-FHA’s regulations, policies, and handbooks;

One or more of the annual certifications was signed by an individual who was also an officer of certain of the DEUTSCHE BANK defendants; and;

Contrary to the representations in MORTGAGEIT’s annual certifications, MORTGAGEIT did not conform to all applicable HUD-FHA regulations.

***

The case is being handled by the Office’s Civil Frauds Unit. Mr. Bharara established the Civil Frauds Unit in March 2010 to bring renewed focus and additional resources to combating financial fraud, including mortgage fraud.

To date, the Office’s Civil Frauds Unit has brought four civil fraud lawsuits against major lenders under the False Claims Act alleging reckless residential mortgage lending.

Three of the four cases have settled, and today’s settlement represents the third, and largest, settlement. On February 15, 2012, the Government settled its civil fraud lawsuit against CITIMORTGAGE, INC. for $ 158.3 million. On February 24, 2012, the Government settled its civil fraud suit against FLAGSTAR BANK, F.S.B. for $ 132.8 million. The Government’s lawsuit against ALLIED HOME MORTGAGE CORP. and two of its officers remains pending. With today’s settlement, the Government has achieved settlements totaling $ 493.4 million in the last three months. In each settlement, the defendants have admitted and accepted responsibility for certain conduct alleged in the Government’s Complaint.

The Office’s Civil Frauds Unit is handling all three cases as part of its continuing investigation of reckless lending practices.

The Civil Frauds Unit works in coordination with President Barack Obama’s Financial Fraud Enforcement Task Force, on which Mr. Bharara serves as a Co-Chair of the Securities and Commodities Fraud Working Group. President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes.

Mr. Bharara thanked HUD and HUD-OIG for their extraordinary assistance in this case. He also expressed his appreciation for the support of the Commercial Litigation Branch of the U.S. Department of Justice’s Civil Division in Washington, D.C.

www.justice.gov/usao/nys/pressreleases/may12/deutschebankmortgageitsettlement.html                  3/4

5/16/12                  USDOJ: US Attorney’s Office – Southern District of New York

Assistant U.S. Attorneys Lara K. Eshkenazi, Pierre G. Armand, and Christopher B. Harwood are in charge of the case.

Filed under: foreclosure Tagged: Allied Home Mortgage Corp, annual certifications, Bankers, Barack Obama, beneficiaries, borrower, CDS, Christopher B Harwood, Citi, Citimortgage, closing papers, counterparties, credit default swaps, credit enhancements, creditor, cross guarantees, cross obligations, David A Montoya, DB Structured Products Inc., debt instruments, deed of sale, DEL program, Department of Justice, Deutsch Bank, Deutsche Bank Securities, Direct Endorsement Lender Program, exotic instruments, fake securitization chain, false certifications, False Claims Act, FHA, FHA insurance, Financial Fraud Enforcement Task Force., Flagstar Bank FSB, fraud patterns, Helen Kanovsky, homeowner, HUD, Judge Lewis Kaplan, Lara K Eshkenazi, lender, mortgage bonds, mortgage industry, mortgage pool, MORTGAGEIT, OIG, Pandemic Lying Admission, Pierre G Armand, Preet Bharara, President Obama, private lenders, promissory note, quality control program, reckless lending practices, REMIC, SDNY, Securities and Commodities Fraud Working Group, securities firms, securitization, security instrument, Southern District of New York, Stuart F Delery, synthetic asset obligations, trust, trustee, U.S. Attorney Civil Frauds Unit
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