Option one Mortgage

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First option achieves $28.2 million SEC comparison on RMBS misstatement charges

The SEC disclosed a composition with Option One Mortgage Corp. on April 24, 2012. "Option One", today known as Sand Canyon Corporation, brought an action in the United States District Court for the Central District of California to have the arrangement cleared by the courts. The SEC complained that in early 2007, Option One omitted essential information from the offer documents for seven securitisations of RMBS by not informing shareholders that Option One's worsening financing situation would affect its capacity to meet its credit buyback commitments related to these RMBSs.

At $28.2 million, the settlements resolve matters the SEC has filed under Section 17 of the Securities Act of 1933.

Supreme Judicial Court of Massachusetts Enforcement Judgments

The Massachusetts Supreme Court (the "Court") on January 7, 2011 rendered its rulings in the highly observed U.S. Bank National Association, Trust vs. Antonio Ibanez ("Ibanez") enforcement proceedings and a accompanying proceeding, Wells Fargo, N.A., Trust vs. Mark LaRace & Another ("LaRace"). Although the Court of First Instance held against the fiduciaries, its rulings leave no room for doubts as to how mortgage credit was traditionally transferred to resident mortgage-backed securities securitisation trust ('RMBS').

In Ibanez and LaRace, the main questions were whether the claimants, the U.S. Bank and Wells Fargo, in their role as fiduciaries in securitisations, had a clear ownership interest in the excluded properties as they had been excluded as owners by the mortgage creditors themselves before the conclusion or registration of the assignment of mortgages.

The court rulings include an agreement with the Massachusetts Land Court (the "Trial Court") that the claimants will not provide adequate proof that the mortgage was ceded to themselves before the foreclosures. However, the court did not raise the issue of whether U.S. Bank and Wells Fargo were the bondholders and proprietors of the bonds, but found that under the Massachusetts Immobiliengesetz, the mortgage does not necessarily correspond to the bond and must also be allocated to the exclusionary creditor upon the enforcement of the foreclosure deed.

It is important that the courts recognise that an assignment of the mortgage can be done in a valid manner through either type of document: 1 ) a signatory arrangement that allocates a specified mortgage to a designated entity separately (an "individual assignment"), or 2 ) an arrangement (such as a PPE or MLPA, as hereinafter defined) that conveys a mortgage loan pools and both include an operational terminology that conveys the associated mortgage and sufficiently identify the mortgage loan coverage of the arrangement (an "assignment arrangement").

In these cases, as an order was only concluded after the transaction, it was the responsibility of U.S. Bank and Wells Fargo to demonstrate that the mortgage had been transferred elsewhere before the transaction. Even though each of the trustees tried to present proof in the legal proceedings in the legal proceedings of one or more transfer contracts, the court decided that the presented proof did not prove that the mortgage had been transferred before the compulsory auctions, as the documents filed had particular deficiencies.

Both Ibanez and LaRace have garnered widespread publicity from both the press and the banking sector because they are first-entry cases in Massachusetts, an out-of-court enforcement state, in a highly charged context where some comments have been provocative in claiming that the basic securitisation documentary evidence trail is profoundly erroneous. Antonio Ibanez took out a mortgage for the acquisition of Massachusetts housing on December 1, 2005, backed by a mortgage to the creditor Rose Mortgage, Inc ('Rose').

Then Rose took the mortgage. Later Rose resold the mortgage to Option One Mortgage Corporation ('Option One') and made an uncovered personal transfer of the mortgage. Options One then registered its name on the mortgage transfer on 7 June 2006. Prior to the record on January 23, 2006, Option One carried out an uncovered transfer of the Ibanez mortgage on an item-by-item basis.

The Ibanez mortgage was transferred to Lehman Brothers Bank, FSB, which took the credit into a pools of securitised credits. In particular, Lehman transferred the securitisation credit to Lehman Brothers Holdings Inc. which then transferred it to the Structured Asset Securities Corporation, the investor who then transferred the mortgage, along with other borrowings, to the U.S. Bank as fiduciary for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-Z.

Every one of these allocations was made by means of an assignation arrangement. In line with the practice for mortgage transfer on the second mortgage markets, no separate mortgage transfer was made for each of these mortgages. Ibanez' mortgage was assigned to U.S. Bank under a poolsing and service contract dated 1 December 2006 (the 'PSA'), which was not included in the Trial Court file.

The Trial Court, however, had the Privateplacement Memorandum ("PPM") of the securitisation in the file. Trial Court found that the PPM contained an assurance that mortgage loans would be "incorporated into the trust". Trial Court quoted a section of the PPM in which it expressly states: "Every assignment of a mortgage loan from the seller[Lehman Brothers Holdings Inc.] to the depositor[Structured Asset Securities Corporation] and from the depositor to the trustee[U.S. Bank] shall be deemed to be a disposal of such mortgage loan and shall be accounted for as such in the sales and assignment agreement or the escrow agreement.

" Trial Court also found that the PPM had determined that "[e]ach mortgage loans are identifiable in a timetable that appears as an annex to the trust agreement. "Significantly, the U.S. Bank has not included in the records any timetable or other documents that identify the Ibanez loans as one of the mortgage loans included in the security transaction.

As of July 5, 2007, the U.S. Bank was excluded from the mortgage in its role as fiduciary for the mortgage-backed securities trusts and bought the real estate as part of the forced auction procedure. Enforcement certificate (from the U.S. Bank as the owner to the U.S. Bank as the buyer) and legal declaration of enforcement were registered on 23 May 2008.

American Home Mortgage Servicing, Inc. was established on 2 September 2008. However, the U.S. Bank made an indivdual transfer of the Ibanez mortgage to the U.S. Bank (as a replacement of the first option), and the U.S. Bank registered the indivdual transfer on September 11, 2008. The U.S. Bank filed a lawsuit in the Trial Court in September 2008 for silent ownership of the real estate in order to take out security assurance for the REO real estate.

The court, however, rendered a verdict against the claimant on March 26, 2009 and ruled that the forced sales were void because the U.S. Bank had not demonstrated that it was the mortgage owner at the date of enforcement. The U.S. Bank then relocated to overturn the Trial Court's decision and stated that it could enter into transfer contracts that would prove that it was the owner of the mortgage before the termination and enforcement sales.

Trial Court gave U.S. Bank permission to prepare these documentation and U.S. Bank filed the PPM and related securitisation documentation to establish its exposure. However, the court rejected the plaintiff's request to set aside the judgement and concluded that the securitisation documentation did not change the finding that the claimant was not the owner of the mortgage at the date of enforcement.

U.S. Bank has filed an appeal against the case with the Massachusetts Supreme Court. Mark and Tammy LaRace funded a mortgage with Option One on 19 May 2005 and the mortgage was recognised on the same date. Option One made an uncovered transfer of the mortgage on 26 May 2005.

With the Flow Sale and Service Arrangement of 28 July 2005, Option One transferred the LaRace mortgage to Bank of America. The Bank of America has taken the LaRace facility into a bank syndicate of final securitised facilities. In particular, Bank of America transferred the securitisation credit to Asset Backed Funding Corporation ("ABFC"), the investor, who then merged the mortgage with others and transferred Wells Fargo as fiduciary for ABFC 2005-OPT 1 Trust, ABFC Asset-Backed Certificates, Series 2005-OPT 1.

Every one of these allocations was made by means of an assignation arrangement. In line with the practice for mortgage transfer on the second mortgage markets, no separate mortgage transfer was made for each of these mortgages. Fargo has not provided the Trial Court with a copy of an arrangement that reflects an option one transfer of the LaRace mortgage to the Bank of America.

Wells Fargo, however, made an unscheduled copy of the mortgage credit sales contract ('MLPA'), which was an exhibit on the securitisation PV. MLPA provided that Bank of America, as vendor of ABFC, "hereby agrees and hereby sells, assigns, transfers and otherwise transmits to the buyer [ABFC], without compensation, on the closing date.... with all its rights, ownership and interest in and to each mortgage credit.

PSA provided that the investor, ABFC:'hereby assigns to the custodian, on account of the trust, all of the rights, titles and interests of the investor.... to and in... each mortgage loan specified in the mortgage credit plans, transfers, assignments, cessions, transfers and otherwise transfers to the custodian all of the rights, titles and interests of the investor...', and'hereby assigns to the custodian the initial mortgage deed, an initial mortgage cession ''in the forms and material qualities suitable for acceptance'', and other documentation relating to each mortgage... and to....

Wells Fargo has not, however, filed a full or non-anonymous credit plan with the Trial Court. However, as stated in the present procedure, the credit plan presented did not sufficiently reveal the LaRace mortgage. Wells Fargo, in its role as fiduciary for the securitisation trusts, was excluded from the mortgage on 5 July 2007 and bought the real estate under the forced auction procedure.

In addition, Option One, which was the previous recordholder of the LaRace mortgage, made an individually assigned mortgage to Wells Fargo as fiduciary on 7 May 2008 and Wells Fargo accounted for the individually assigned mortgage on 12 May 2008. Recognized single allotment stated the date of entry into force of April 18, 2007, a date prior to the release of the sales notification and forced sales.

Wells Fargo, as in Ibanez, filed a lawsuit at the trial court in October 2008 for silent ownership of the real estate in order to take out security assurance for the REO properties. In addition, as the outcome in Ibanez, the court on March 26, 2009 rendered a verdict against the claimant and ruled that the forced sales were void because Wells Fargo had not demonstrated that it was the mortgage owner at the date of enforcement.

While Wells Fargo also received permission to provide supplementary evidence of his owner title, the Trial Court was unable to satisfy the Trial Court that the securitisation evidence demonstrated that it was the owner at the date of enforcement. Wells, like the U.S. Bank, filed an appeal with the Massachusetts Supreme Court.

In Ibanez and LaRace's appeals to the Massachusetts Supreme Court, the court held that the suing fiduciaries could not prove that they were the mortgage owners at the date of publication of the sales notes and were excluded from the real estate. Mortgagor " means the registered mortgage creditor or any assignor according to a current cession.

Some of the Court's finding was partly founded on the fact that the fiduciaries had not concluded certain contracts until after the compulsory enforcement sales. Further, while both fiduciaries were arguing that the securitisation papers they filed set out legal assignment terms that made them the mortgage owners prior to the sales announcements and enforcement, the court held a different view.

As regards Ibanez, the Court did not agree with the applicant nominee because the PPM, which was the main transfer instrument presented as proof, referred only to the intention to grant mortgage credits in the near term and the presented proof did not contain a timetable clearly showing that Ibanez's credit was taken into the securitisation group.

Thus, as a consequence of these deficiencies, the court confirmed the Trial Court judgment that Option One, not the U.S. Bank, was the mortgage owner at the date of enforcement and the U.S. Bank did not have the power to exclude the mortgage. As regards LaRace, the Court also did not agree with the applicant trustee's submission.

Well Fargo reasoned that the LaRace mortgage was added to the ABFC allocated swimming pools by filing the PSA, which provided a tight text message allocating the credit and an'anonymised' timetable of credits (containing no real estate address, mortgage debtor name or any credit or service numbers). Wells Fargo claimed that a particular mortgage in the plan with the postal codes and the location of the LaRace real estate was the LaRace mortgage, since the payments and the amount of the mortgage corresponded to the LaRace one.

While Wells Fargo PSA, unlike the U.S. Bank's PPM, used the terminology of a present transfer and not the intention of a further transfer, the Court found that the timetable still did not indicate with "sufficient specificity" that the LaRace credit had been allocated to the Trust.

As with the Ibanez loans, the Court found that the mortgagee of the LaRace was Option One and no proof was presented to the Trial Court that the LaRace loans had ever been transferred from Option One to another institution before the enforcement notification and sales were published.

In addition, the fiduciaries put forward three additional pleas in the further development of their position, each of which was rejected by the Court. Firstly, the Settlement Agents claimed that the single blank allocations made by Option One and which identified the cedant, but not the transferee, would be sufficient to be independent actual allocations. For a long time, the court has been of the opinion that a transfer of immovable assets, such as a mortgage, which does not designate the transferee, does not mediate and is null and void. However, the court has ruled that the transfer of immovable assets, such as a mortgage, is not a transfer.

Secondly, the fiduciaries claimed that because they each hold the mortgage bills, they have a sufficiently strong interest, financially or otherwise, in the mortgage to allow foreclosure (commonly known as the'mortgage follows the banknote theory'). Nevertheless, the Tribunal found that, in the event of the lack of a legally enforceable transfer in writing of a mortgage or judicial order, the mortgage owner would remain unaltered in accordance with applicable Massachusetts laws.

Second, the fiduciaries claimed that single transfers after the sell-off after the foreclosure auction were adequate if they were made in connection with proof of a prior disposal before the sell-off. The Court, however, again ruled against the claimants and found that, since a mortgage is a conveyance of rights, an act of conveyance takes effect only on the date of conveyance and not earlier in terms of purchasing capacity.

In particular, the Court found in its observations that the transfer of the security right over real property at the moment of enforcement or disposal need not be registered or made in a describable manner in order to prove title to the security right over real property. As the Court expressly pointed out, "where a mortgage bank is associated with a securitised confidence, the implemented arrangement which can identify the mortgage bank with a list of mortgage banks clearly and specifically identifying the mortgage in question as one of those associated may be sufficient to appoint the guarantor as the mortgage holder".

" However, the Court also found that the notifying party had to prove that an operation had been carried out by a company which had previously owned the mortgage. It has also expressly indicated that an assignation can either be proven by the court: An individual transfer of the owner of the mortgage that designates the transferee (i.e. without notifying the intermediate transferor).

Again, the crucial point stressed by the court is that the exclusive unit holds a legal cession of the mortgage before it begins enforcement. On a disregarded facet of this ruling, the court, apparently in breach of Massachusetts' earlier practice, clearly indicates that the confirmed mortgage transfers used in both the Ibanez and LaRace cases after enforcement may only be used if there was a legal transfer before the enforcement notification - again a transfer that was "valid" by being in written and designating an assignor, but which does not have to be filed or written down.

On the basis of an Amnicus brief presented in relation to the case, a confirming transfer after a compulsory enforcement sales could be used in advance of this ruling, even if there was no previous transfer. It appears that the Court's ruling has the effect in practice of a retroactive amendment to the acceptable procedure for recourse to a second transfer, which may cause problems for mortgage credit staff in Massachusetts.

Art. 9 is applicable to the sale of debentures and mortgage loans, and "Section 9-203(g) takes the traditionally held position that the mortgage follows the grade, i.e. the purchaser of the grade also purchases the mortgage. "3 "3 "The seizure of a right of seizure in respect of a claim for payment of consideration or service which is secured by a right of seizure or any other pledge on goods of a personal nature or nature is also an assignment of a right of seizure in respect of the right of seizure, the mortgage or any other pledge".

In addition, the court has not considered an extra methodology which, under UCC Art. 9, would allow a chargee to carry out extrajudicial enforcement without a registered transfer. 9-607 (b)) provides that "a[buyer of a borrower's note] may, under paragraph (a)(3), execute the right of a[seller of a borrower's note] to obtain a mortgage out of court, whereby the[lender] may keep a [ record] in the bureau where a registration of the mortgage credit is made (1) a copy of the[mortgage sale and mortgage acquisition contract or equivalent] which establishes or provides for a surety5 over the debt guaranteed by the mortgage;

A) a delay has arisen; and B) the [lender] is authorized to assert the mortgage out of court. Whilst the interaction between these rules and immovable property laws may differ in a given State, they may be operative to determine that the debtor has a title to the mortgage in question.

The Ibanez and LaRace cases are state decrees of Massachusetts and are mandatory only in Massachusetts. The Court also points out that, instead of an indivdual transfer of mortgage rights, a full series of transfer contracts, in particular a timetable to transfer Ibanez's and LaRace's mortgage rights to the PSAs, which clearly identifies them in the pool, would have provided adequate evidence of the trustee's agent position.

Criticism of the rulings of Ibanez and LaRace is that in Massachusetts, an out-of-court enforcement state, on the assumption that the lender is the lender and bearer of the Mortgage Pfandbriefe, compliance with domestic immovable right laws is required in order to duly conclude an enforcement in the state which, on the basis of the judgment of the Court in these cases, can be complied with by the following:

i) assign the mortgage to the trusts in its contract conditions; ii) assign the credit with reasonable specifity (and "scrubbed" and "anonymised" plans, such as are normally presented to the SEC, cannot be used to verify the identification of the credit); and iii) link the registered mortgage creditor with the securitisation escrow agent.

Retroactive transfer of the mortgage made available to the nominee in an effort to transfer the mortgage retrospectively before the announcement and disposal of the enforcement; a naked transfer retained by the nominee in so far as it is empty and is not concluded before the announcement and disposal of the enforcement.