Motion-Joinder FHFA 4-29-13

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Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93103 805-450-0450 fax 805-965-3492 nancyduffysb@yahoo.com Real Estate Broker Lic. 853086 Attorney for Plaintiff Carole S. Alles UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION No. 5:12-cv-02095-MWF-DTB
filed 11/29/12
10 CAROLE S. ALLES 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Plaintiff,
v. WELLS FARGO BANK, NA; WELLS FARGO HOME MORTGAGE, INC; CAL-WESTERN RECONVEYANCE CORPORATION; DOES 1-10 Defendants
MOTION TO JOIN REAL PARTY IN INTEREST FHFA, CONSERVATOR FOR FREDDIE MAC, ALLEGED BENEFICIARY OF ALLES LOAN and supporting affidavit of Nancy D. McCarron filed with REQUEST FOR JUDICIAL NOTICE Fed R Civ P 17, 19, 21 F.R.E. 201 Date: April 29, 2013 Time: 10:00 a.m. Ctrm: 1600 Hon. Michael W. Fitzgerald
NOTICE OF MOTION
Please note at the above time and place plaintiff ALLES will move the court for an order to join Real Party in Interest Federal Housing Financing Agency, [FHFA] as the conservator for Federal Home Loan Mortgage Corporation[FHLMC] aka Freddie Mac, the alleged beneficiary of the ALLES loan. The motion is based on FRCP 17,19, 21 and FRE 201 [Judicial Notice], Points & Authorities, affidavit of Nancy McCarron, the court files, and documents included in plaintiffs Request for Judicial Notice. Substitution of Trustee, Notice of Default, and Notice of Sale were recorded by the originating lender Wells Fargo Bank, NA who concealed identity of the alleged beneficiary [Freddie Mac] and that the enterprise was under the conservatorship of FHFA, the real party in interest.
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Motion to Join Real Party in Interest FHFA as Conservator for Freddie Mac, Alleged Beneficiary
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nancy Duffy McCarron 4-1-13 INTRODUCTION & GROUNDS FOR MOTION The motion is made on the grounds that under Fed.R.Civ.P 17, 19(a), 21 FHFA is a required party for the just adjudication of this action. The action is based on the wrongful foreclosure of real property and wrongful denial of a loan modification to a borrower who qualified for a loan modification. This is an issue of fact to be determined by a jury trial. Wells Fargo Bank, NA was originating lender when the loan closed on 8/1/2006, as well as the loan servicer. Wells never disclosed in escrow that it had pre-sold Alles loan to Freddie Mac, which closed on 9/13/2006, retaining servicing rights. [Alles Decl. 2] Wells was required to notify plaintiff of that change in beneficiary. 15 USC 1640. Instead of complying Wells and Freddie Mac concealed this material fact from plaintiff. Wells Fargo continued this charade for 7 years until plaintiffs counsel discovered it. Wells Fargo caused fraudulent documents to be recorded, through its conspiring selfnominated trustee Cal-Western Reconveyance Corporation [CWRC] as Wells Fargos purported attorney in fact when no such authorization was in effect/recorded in Riverside As shown in documents in a Request for Judicial Notice, Wells has a long history of prosecuting fraudulent foreclosures, having settled with federal and state prosecutors to avoid criminal liability. Despite being party to a $26 billion and 8.9 billion settlement, and signing consent judgments with prosecutors and regulators, promising not to continue prosecuting fraudulent foreclosures, Wells continues to prosecute fraudulent foreclosures. Wells and CWRC never disclosed that Freddie Mac was under a conservatorship, and its assets are under the control of FHFA who should have been named as real party. Wells & CWRC never disclosed Freddie Mac or FHFA in Certificate of Related Parties, and intentionally concealed both names (by omission) in a Joint Rule 26(f) Wells filed. The court ordered all corporate parties to disclose related entities in a Joint Rule 26 order.
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Plaintiff included it in her draft but Wells insisted on submitting it on his firms template. Counsel then deleted that section in his submission. Plaintiffs counsel asked counsel to stipulate to joinder in a meet & confer on this motion on March 13, 2013 but he refused. 1. AS CONSERVATOR FHA IS REAL PARTY IN INTEREST TO BE JOINED As conservator of Freddie Mac, FHFA is the real party who must sue or be sued. [see RJN, Exh A] It is a news release issued September 9, 2011 announcing FHFA was suing 17 banks, as conservator for Freddie Mac and Fannie Mae, for securities fraud. Whether a general guardian, committee, conservator, or other like person actually has this capacity is determined by reference to state law. Sam M. v. Carcieri, 608 F.3d 77, 8687 (1stCir.2010) [State law generally governs an individuals capacity to represent a minor or incompetent in federal court Rule 17(c) should not be used to circumvent the mandate in Rule 17(b) to observe state law.] Development Disabilities Advocacy Ctr. v. Melton, 689 F.2d 281, 285 (1st Cir. 1982) [capacity to sue as representative of another is usually determined by state law]. CA Codes of Civil Procedure govern: CCP 372. Minors and incompetent persons as parties; Manner of appearing; Appointment of guardian ad litem; Handling of moneys recovered (a) When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate CCP 389. Indispensable or conditionally necessary parties; Order to bring in party, and dismissal on failure to comply; Separate trials (a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise
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inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.
ANALYSIS IS SAME UNDER AND
FEDERAL RULES OF CIVIL PROCEDURE, RULE 17(A)
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Rule 17. Plaintiff and Defendant; Capacity; Public Officers. (a) Real Party in Interest. (1) Designation in General. An action must be prosecuted in the name of the real party in interest. (c) Minor or Incompetent Person. (1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator An entitys status as a required party is not judged by any prescribed formula, but instead can only be determined in the context of particular litigation. CP Natl Corp. v. Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir. 1991). In general, required parties have been described as those persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on the rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. Id FHFA as conservator has an interest in the loan. In Scott Paper Co. v. National Casualty. Co., 151 F.R.D. 577, 579 (E.D. Pa. 1993) the court held that where a defendant will not advocate for the interests of others, the party whose interest is at stake must be made a part to do complete justice in the action. Fed. R. Civ. P. 19(a)(B)(i) [nonjoinder may harm absentees ability to protect the interest]. see Cortez v. City of LA, 96 F.R.D. 427, 428 (C.D. Cal. 1983) [quoting Moores Manual]
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If a partys right to protect its interest may be impaired the party should be joined Lopez v. Martin Luther King, Jr. Hosp., 97 F.R.D. 24, 29 (C.D. Cal. 1983) There is a strong policy permitting amendment to join a required party. Texaco, Inc. v. Ponsoldt 939 F.2d 794, 798 (9th Cir.19910. Wells will not advocate for the best interest of FHFA 3. HISTORICAL BACKGROUND [Fannie Mae, Freddie Mac, GSEs, FHFA, OIG, 2008 Financial Crises] In 1938, as part of the Great Depression New Deal, Congress created the Federal National Mortgage Agency [FNMA], commonly called Fannie Mae, as a secondary market for lenders to sell mortgages. In 1968 Congress spun off Fannie Mae as a hybrid for-profit and government enterprise---meaning it had a government policy mission---to support affordable homeownership in America---and a profit motive. In 1970 Congress created the Federal Home Loan Mortgage Association [FHLMC], commonly called Freddie Mac, to compete with Fannie Mae to avoid a monopoly. Congress created several Federal Home Loan Banks for even more competition. These Government Sponsored Entities (GSE's) expanded the secondary mortgage market, created thousands of home construction jobs, and stimulated the economy. Prior to 1986 a bank lent depositor funds to home buyers holding the borrowers tangible note [promise to repay] in its loan portfolio. The home buyer executed a tangible mortgage or trust deed to secure the promise to repay. An electronic copy of the tangible mortgage or trust deed was recorded against the real property to secure the debt obligation. If a home owner defaulted the bank foreclosed to recover its losses. If the debt obligation created by the tangible note was repaid the bank cancelled the tangible note and mortgage or recorded a reconveyance of the trust deed to clear title. In 1986, to stimulate the economy, Congress passed the Tax Reform Act of 1986. Congress created Real Estate Mortgage Investment Conduits [REMICs] to encourage more loan originations in a process called securitization. Lenders could originate more
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loans by pre-selling them in escrows and conveying the debt obligations into securitized loan pools called REMIC trusts. Thousands of intangible electronic copies of those debt obligations were split off from their corresponding tangible notes and mortgages/trust deeds and conveyed into REMIC trusts for special investor tax credits. Investors were offered minute portions of conglomerated intangible debt obligations marketed by Wall Street brokers as Collateralized Debt Obligation certificates [CDO] selling for $25 or more. These Mortgage Backed Securities [MBS] were given special REMIC tax credits to stimulate housing and construction markets. Billions in profits and commissions were generated for lenders, REMIC trustees and Wall Street brokers as they transmuted intangible debt obligations into CDO certificates which were traded and resold in a worldwide market. Because originating lenders incurred no risk of default as pre-sold loans were paid off when escrows closed they failed to abide by traditional underwriting standards in approving borrowers for home loans. Predatory lending evolved as hungry lenders and brokers approved loans to buyers who could not repay. Loans were originated at lowinterest teaser rates with conversion clauses to shock rates within 3-5 years. Thousands of homeowners defaulted resulting in an avalanche of foreclosures and a tsunami of litigation. As depositors converged on banks to withdraw deposits banks began collapsing during the 2008 tax year. Freddie and Fannie were nearly insolvent because they owned a majority of the securitized loans in the secondary market. Congress created the Federal Housing Finance Agency (FHFA) on July 30, 2008 to rescue Fannie and Freddie from insolvency as explained on the FHFAs website recited below: The Federal Housing Finance Agency (FHFA) was created on July 30, 2008, when the President signed into law the Housing and Economic Recovery Act of 2008. The Act gave FHFA the authorities necessary to oversee vital components of our countrys secondary mortgage markets Fannie Mae, Freddie Mac, and the Federal Home Loan BanksFHFA's mission is to provide effective supervision, regulation and housing
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mission oversight of Fannie Mae, Freddie Mac and the Federal Home Loan Banks to promote their safety and soundness, support housing finance and affordable housing, and support a stable and liquid mortgage market. As of September 2010, the combined debt and obligations of these GSEs totaled $6.7 trillion, which is $2.7 trillion below the total publicly held debt of the USA. Freddie Mac and Fannie Mae also purchased or guaranteed 65% of new mortgage originations. Considering the impact of these GSEs on the U.S. economy and mortgage market, it is critical that we intensify our focus on oversight of Fannie Mae, Freddie Mac, and the Federal Home Loan Banks. see www.fhfa.gov [about us] The combined GSE losses of US $14.9 billion and market concerns about their ability to raise capital and debt threatened to disrupt the U.S. housing financial market. The Treasury committed to invest as much as US $200 billion in preferred stock and extend credit through 2009 to keep the GSEs solvent and operating. The two GSEs have outstanding more than US $5 trillion in mortgage backed securities [MBS] and debt; the debt portion alone is $1.6 trillion. Kopecki, Dawn [2008-09-11]. "U.S. Considers Bringing Fannie, Freddie on to Budget" Bloomberg US Treasury Secretary Henry Paulson stated that placing the two GSEs [Freddie & Fannie] into conservatorship was a decision he fully supported, and he advised "that conservatorship was the only form in which I would commit taxpayer money to the GSE" He further said that "I attribute the need for today's action primarily to the inherent conflict and flawed business model embedded in the GSE structure, and to the ongoing housing correction. Paulson, Henry [Press release] 2008-09-07]. On September 7, 2008, FHFA director James B. Lockhart III announced he had put Fannie Mae and Freddie Mac under the conservatorship of the FHFA. The action has been described as "one of the most sweeping government interventions in private financial markets in decades." Lockhart III, James B. (2008-09-07); Wikipedia Under the plan engineered by Treasury Secretary Henry M. Paulson Jr., the government would place the two companies under conservatorship a legal status
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akin to Chapter 11 bankruptcy. Their boards and chief executives would be fired and a government agency, the Federal Housing Finance Agency, would appoint new chief executives. Washington Post "Treasury to Rescue Fannie and Freddie" 9-7-2008; quotes from Pat Paulson; Wikipedia The US Treasury has infused $190 billion to Fannie Mae and Freddie Mac under the conservatorship of the FHFA. www. fhfa/oig.gov "Welcome Video" Steve A. Linick, IG 4. OFFICE OF INSPECTOR GENERAL [OIG] The Housing and Economic Recovery Act of 2008 established an Office of Inspector General (OIG) within the Federal Housing Finance Agency (FHFA). The Inspector General Act of 1978, as amended, sets forth the functions and authorities of FHFA/OIG. Mission The FHFA OIG is established by law to provide independent and objective reporting to the FHFA Director, Congress, and the American people through its audit and investigative activities. FHFA OIGs mission is to promote the economy, efficiency, and effectiveness of FHFAs programs; to prevent and detect fraud, waste, and abuse in FHFAs programs; and to seek sanctions and prosecutions against those who are responsible for such fraud, waste, and abuse. www.fhfaoig.gov Since 1938 Congress has strived to maintain a stable housing market to encourage home ownership. After an avalanche of foreclosures Congress created HAMP [Home Affordable Modification Program] and HARP [Home Affordable Refinance Program]. Loan Servicers are required to offer alternatives to help homeowners avoid foreclosure. Freddie Mac replaced its classic mortgage modification plan with a new Freddie Mac Standard Modification for borrowers ineligible for HAMP or HARP programs. Lenders who service Freddie Mac loans are required to comply with its Seller/Servicers Guide, HAMP Guidelines and Freddie Mac Standard Modification Guidelines. Unfortunately, there is an inherent conflict in authorizing servicers to administer modification programs. Servicers generate between $6,000-$10,000 in foreclosure fees
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as compared to receiving a minimal stipend of $1,000 for a loan modification, with two additional stipends after a few years into the loan. Because servicers are profit-driven there is no incentive to modify a loan and lose foreclosure fee profits. Servicers only modify loans under threat of litigation or when mandated by federal or state regulations. On March 21, 2013 Steve A. Linick, Inspector General, issued an audit reciting: Freddie Mac and its eight largest servicers together received over 34,000 escalated cases between October 2011 and November 2012. Mortgage servicers, Freddie Mac, and FHFA have not adequately fulfilled their respective responsibilities to address and resolve escalated cases Freddie Macs oversight of servicer compliance has been inadequate... In a 2011 audit, we found that FHFA did not adequately process consumer complaints. Specifically, the agency did not sufficiently define its role in processing complaints; it lacked related policies, procedures, and a consolidated system for tracking complaints; and it failed to perform various oversight functions to ensure compliance with its records management policy and safeguards for personally identifiable information. Because FHFA lacked a sound internal control environment for handling complaints, we concluded that the agency could not provide reasonable assurance that alleged fraud and improper foreclosures were addressed efficiently and effectively. Among Freddie Macs eight largest servicers which serviced nearly 70% of Freddie Macs 10.6 million mortgages---four (Bank of America, CitiMortgage, Provident, and Wells Fargo Bank) did not report any escalated cases to Freddie Mac despite handling more than 20,000 such cases during the 14-month period between October 2011 and November 2012. These large servicers also did not submit escalated case reports in December 2012. Moreover, CitiMortgage and Wells Fargo did not submit reports in January 2013.
CONCLUSION:
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FHFA developed the SAI (Servicers Alliance Initiative) as part of an effort to keep homeowners in their homes . Servicers, Freddie Mac, and FHFA have not adequately fulfilled their respective rolls relative to an important goal of SAI addressing and resolving escalated consumers complaints in a timely and consistent manner. On March 26, 2013 Inspector General, Steve A. Linick, issued an audit reciting: OIG found that FHFA does not thoroughly oversee how the Enterprises monitor counterparties contractual compliance. Specifically, FHFA does not examine how the Enterprises monitor compliance with consumer protection laws, and, indeed, OIG determined that the Enterprises do not ensure that their counterparties business practices follow all federal and state laws and regulations designed to protect consumers from unlawful activities such as discrimination. FHFA has a statutory responsibilityunder the Housing and Economic Recovery Act of 2008 (HERA)to protect the public interest, which in this instance is at least partially defined by federal and state consumer protection laws. HERA established FHFA as the Enterprises regulator to ensure their safety and soundness. In September 2008, the federal government began investing taxpayer dollarsa total of $187.5 billion through September 2012in the Enterprises to prevent their insolvency. At the same time, FHFA became the Enterprises conservator to oversee their activities and preserve their assets. The agency is also required to ensure their activities are consistent with the public interest: [t]he principal duties of the Director shall be ... to ensure that ... the activities of each regulated entity and the manner in which such regulated entity is operated are consistent with the public interest. see 12 U.S.C. 4513(a)(1)(B)(v). Both Enterprises have written selling and servicing guides that their counterparties contractually commit (i.e., represent and warrant) to follow. Among other things, the contractual agreements and the guides require
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counterparties to comply with all federal and state laws and regulationsincluding consumer protection statutesapplicable to originating, selling, and servicing mortgage loans. If the Enterprises discover that a counterparty has not complied, then they can require the original lender to repurchase noncompliant loans. The agency, however, has not actively supervised the Enterprises oversight of counterparties contractual compliance with federal consumer protection laws, except where the Enterprises face legal liability from a counterpartys failure to comply (e.g., predatory lending). The Enterprises counterparties commit to comply with federal, state, and local laws, such as fair lending, equal credit opportunity, antidiscrimination, and borrower privacy laws. Also, the Dodd-Frank Act forbids consumer financial product providers and servicers from acting unfairly, deceptively, or abusively. FHFA has begun to put together a plan to address its role in overseeing the Enterprises oversight of their counterparties compliance with federal consumer protection laws. Recently, FHFA has begun to take steps to work with federal regulators responsible for supervising and regulating counterparties that sell mortgages to the Enterprises. For example, the agency has developed an information-sharing agreement with regulators in the consumer financial market, such as the Federal Reserve Board and the Office of the Comptroller of the Currency. In addition, agency officials have met with specific regulators, such as the Federal Deposit Insurance Corporation. FHFA is determining how best to coordinate with these agencies to further its mission, but has not specifically addressed its role in monitoring the Enterprises oversight of their counterparties compliance with contractual provisions requiring adherence to consumer protection laws.
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Going forward, such interagency coordination may be helpful in formulating a risk-based plan to assess how the Enterprises monitor their counterparties contractual compliance with federal and state laws generally and with consumer protection laws in particular. OIG is planning targeted work related to two of the Enterprises largest seller/servicers to assess these counterparties compliance with federal consumer protection laws. The results of this work will help the agency refine its plan and focus on significant risks. Appendix A of the March 26, 2013 audit contains a letter from Jon Greenlee, Deputy Director for Enterprise Regulation, to Russell Rau, Inspector General for Audit, in which Mr. Greenlee recites: FHFA is strongly committed to the fair treatment of consumers in a manner that fully complies with all laws and regulations.
WELLS FARGOs CONSENT JUDGMENT USA et al v. Bank of America Corp, et al Case No. 120361 entered April 4, 2012 On April 4, 2012 the US District Court for the District of Columbia entered a consent Judgment to settle the above case for $26 billion to be paid by consenting banks, including Wells Fargo Bank, NA. [ www.justice.gov/opa/documents/wellsfargo-consentjudgement.pdf]. Pages from the Consent Judgment related to this complaint, showing Wells Fargo Bank violations, are included as Exhibit E in RJN In the consent judgment Wells Fargo Bank impliedly admitted violating the Unfair and Deceptive Practices laws, the False Claims Act, FIRREA, the Servicemembers Civil Relief Act, the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. [E-1] Wells Fargo shall comply with Servicing Standards attached as Exhibit A. [E-3] The consent judgment is effective for 3 years from entry; i.e. until April 3, 2015. [E-6].
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Michael J. Held, Executive for Wells Fargo & Company and Wells Fargo Bank, NA signed the consent judgment. [E-91]. Relevant parts of Exhibit A are attached. [RJN-E] Servicing Standards Wells Fargo agreed to comply with are now codified in California; i.e. The Homeowners Bill of Rights effective 1/1/2013. Although The Homeowners Bill of Rights did not become effective until 1/1/2013 Wells Fargos was required to comply with the consent judgment since entered on 4/4/12. Wells Fargos violations of the Servicing Standards in Exhibit A of the consent judgment as well as unfair treatment and discrimination are the subject of this consumer complaint. See Complaint to Federal and State Agencies emailed on March 30, 2013. The consent judgment Wells Fargo executed on 4/4/2012 and exhibits attached to the complaint show at least 22 provable violations of the consent agreement just in Alles foreclosure alone. Request for Judicial Notice Exhibit List
A. B C D E FHFA sues 17 banks as conservator for Fannie Mae and Freddie Mac 9/2/2011
CONSENT ORDER USDT Office of Comptroller v. Wells Fargo Bank, NA 4/13/2011 CONSENT ORDER USA v. Bank of America, et al (Wells Fargo Bank, NA) 4/4/2012 Independent Foreclosure Review (Federal Reserve Board and OCC) 4/13/2013
COMPLAINT to FHFA Wells Fargo Failure to Comply with Consent Orders 4/30/2013
A is FHFAs press release announcing its lawsuits as conservator for Freddie Mac. B is a consent judgment OCC entered on 4/13/11 to remedy Wells Fargos history of foreclosure fraud. C is a consent judgment USA and 50 state attorneys general entered on 4/4/12 against Wells for foreclosure fraud. Banks, including Wells Fargo paid $26 billion to avoid criminal prosecution for foreclosure frauds. D is Federal Reserve Bank and OCCs $8.9 billion settlement for Wells Fargos continued foreclosure frauds. This 2-year history of consent judgments with various federal and state prosecutors, and bank regulators, demonstrates that Wells Fargo will not stop foreclosure frauds unless and until Judges in state and federal courts stop blessing these fraudulent foreclosures.
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Appendix A of the March 26, 2013 audit contains a letter from Jon Greenlee, Deputy Director for Enterprise Regulation, to Russell Rau, Inspector General for Audit, in which Mr. Greenlee recites: FHFA is strongly committed to the fair treatment of consumers in a manner that fully complies with all laws and regulations. WHY FHFA SHOULD BE JOINED Because FHFA is strongly committed to the fair treatment of consumers in a manner that fully complies with all laws and regulations, and has a statutory duty under the Housing and Economic Recovery Act of 2008 (HERA)to protect the public interest, which in this instance is at least partially defined by federal and state consumer protection laws, the FHFA is a necessary party to these proceedings. FHFA developed the SAI (Servicers Alliance Initiative) as part of an effort to keep homeowners in their homes. OIG audit found that Servicers, Freddie Mac, and FHFA have not adequately fulfilled their respective rolls relative to an important goal of SAI and resolving escalated consumer complaints in a timely and consistent manner. OIG determined that the Enterprises do not ensure that their counterparties business practices follow all federal and state laws and regulations designed to protect consumers from unlawful activities such as discrimination, the FHFA is a necessary party herein. The agency is also required to ensure their activities are consistent with the public interest: [t]he principal duties of the Director shall be ... to ensure that ... the activities of each regulated entity and the manner in which such regulated entity is operated are consistent with the public interest. see 12 U.S.C. 4513(a)(1)(B)(v). RJN Exh. E, sub-exhibit B, is a Riverside County tax assessors valuation of the Alles home at $105,000. The deed of trust was for $230,000 at 7% interest for 30 years. Accordingly, if the home were sold at a trustees sale it would sell for around $105,000. Freddie Mac ($190 billion infused by taxpayers) could lose $100,000 on the forced sale. This is not in the public interest and would result in a substantial loss to Freddie Mac, i.e. the taxpayers who has infused $190 billion to keep it solvent under the conservatorship.
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Of course, Wells maximizes its profit by generating $6,000-$10,000 in foreclosure fees, kickbacks for forced placed insurance (they pick the carrier), penalty fees, kickbacks from Cal-Western for its foreclosure fee gravy train, and various other tacked on fees. Wells and CWRC could care less about the best interest of taxpayers, not discriminating, or complying with 3 consent agreements thrust upon Wells to avoid criminal prosecution. This case has no chance to settle unless FHFA is enjoined as a party, who has the authority to settle this case as conservator for Freddie Mac the purported beneficiary. Wells attorney has made it clear there is no chance that Wells will settle. [McCarron Decl. ]. In a Joint Rule 26(f) report submitted to the court by Adam Hamburg, counsel for Wells Fargo, under SETTLEMENT, he recites, Wells Fargo has determined that Plaintiff is not entitled to a loan modification. As such, it is unlikely that a settlement conference would be useful in this matter. See excerpt from Rule 26(f) filed. Doc. 29:
As the court recalls plaintiff asked the court to required Wells to attend mediation as a condition of setting aside a clerks entry of default. Wells refused to mediate anything. Wells has only one agenda---to foreclose and steal Alles home because Wells Fargo will generate $6,000 in foreclosure fees, forced insurance kickbacks, and other hidden fees. Wells will get $1,000 stipend from the government to approve Alles modification. This is exactly why FHFA put Freddie Mac under conservatorship on 9/7/2008 as discussed above. FHFA knew that Freddie Mac was doing nothing to prevent the banks from processing fraudulent foreclosures and stealing homes with no standing to do so.
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As explained above the OIC was created to conduct audits and to prosecute banks who continued to foreclose when it was not in the publics best interest to foreclose. This case is a prime example. Alles loan is $230,000. Assessed value is $105,000. [Alles Decl. 7]. Freddie Mac (infused by 190 billion taxpayer funds) will lose $100,000 With modification they will continue to collect interest without a loss of $100,000. Obviously it is in the public interest to avoid a $100,000 loss. It is exactly why the government put the enterprises into conservatorship (akin to bankruptcy) to avoid losses. Foreclosing flies in the face of Congressional intent in passing emergency Housing and Economic Recovery Act of 2008, and all subsequent legislation enacted to save homes from foreclosure which has a negative effect on the nationwide housing market. This also flies in the face of California Legislators who enacted the Homeowners Bill of Rights, effective 1/1/13, and other laws to prevent fraudulent foreclosures, ensure transparency in foreclosure proceedings, and to compel servicers to modify loans to keep owners in their homes to avoid neighborhood blight with thousands of vacant homes. Plaintiff does not plan to assert any causes of action against FHFA and does not believe they are liable for intentional torts of Wells Fargo and Freddie Mac acquiescence. Plaintiff believes neither Wells Fargo, CWRC, or Freddie Mac ever notified FHFA about Alles application for modification, her appeal, or her escalation request to Freddie Mac. Indeed the OIC recited in the above audit that Wells Fargo fails in its duty to report them. Among Freddie Macs eight largest servicers which serviced nearly 70% of Freddie Macs 10.6 million mortgages---four (Bank of America, CitiMortgage, Provident, and Wells Fargo Bank) did not report any escalated cases to Freddie Mac despite handling more than 20,000 such cases during the 14-month period between October 2011 and November 2012. These large servicers also did not submit escalated case reports in December 2012. Moreover, CitiMortgage and Wells Fargo did not submit reports in January 2013. March 21, 2013 OIG audit
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This proves Wells Fargo concealed Alles escalation complaint, Freddie Mac acquiesced in the fraud, and FHFA was not notified about Carole Alles modification. This is exactly why FHFA should be joined. The conservator will make a reasoned decision and possibly settle the case immediately by approving Alles for Freddie Macs Streamlined Modification Initiative (SMI) effective 7/1/13. [McCarron Decl. 10 Exh.A] If Alles is approved for the SMI the case can be settled and dismissed. Alles is not asking for a free house. All she is asking for is a reduction in interest from 7% fixed down to 2% fixed to reduce a payment from $1491/mo to $800 per month. The current rents are $1300 per month and her social security is $800 per month. The combined income is $2,100 per month making the loan affordable. The payment would be 38% of monthly income well within standards set forth in the modification guidelines. Alles can also rent out another bedroom to supplemental her income if necessary. Alles has history of renting rooms for 7 years and rarely has a vacancy in her rentals because her home is on Hole 1 of a fairway to the Palm Desert Country Club golf course. FREDDIE MAC NEED NOT BE JOINED Alles was required to make this motion to avoid waiver of her right to enjoin FHFA. Failure to raise a timely objection to a real-party-in-interest violation constitutes a waiver of the objection. United States v. Callahan (9th Cir 1989) 884 F2d 1180, 1183 n4, cert. denied sub nom. Esto, Inc. v. Callahan, 493 US 1094 (1990). Representative parties, such as conservators, need not join beneficiaries as parties, even though they might ultimately benefit from or be bound by a judgment. Fed R Civ P 17(a); see, e.g., Board of Natural Resources v. Brown (9th Cir 1993) 992 F2d 937, 942. The function of a representative (conservator) is to make appropriate decisions for the incompetent. United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986). An officer is described by title rather than by name. Fed. R. Civ. P. 17(d); [ Rule 17 advisory committee note of 2007]. Plaintiff seeks leave to add The Acting Director of FHFA.
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The acting Director of the FHFA is Edward J De Marco. The president is in the process of selecting a Director. Plaintiff intends to identify the new party as Director (or Acting Director) in compliance with the 2007 revisions to Fed R Civ P 17(d) which authorizes naming the officer by title rather than by name. Because the FHFA is conservator with full powers to make decisions for both enterprises [ Fannie Mae and Freddie Mac] under the conservatorship, Freddie Mac need not be joined in the action. CONCLUSION The court may order the addition of a party on a motion of any party or on its own initiative at any stage of the action. Fed R Civ P 21. A person who is subject to service and whose joinder will not deprive a court of jurisdiction over the subject matter of the action, must be joined as a party if in his or her absence, complete relief cannot be accorded among those already parties; or he or she claims an interest relative to the subject of the action and is so situated that the disposition of the action in his or her absence may, as a practical matter impair or impede his or her ability to protect that interest, or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of his or her claimed interest. Fed R Civ P 19(a)(1). It is apparent that Wells Fargo will not make a decision based upon what is in the best interest of either Alles, Freddie Mac, or the FHFA. Wells Fargo is only interested in maximizing its profits and generating $6,000 - $10,000 in foreclosure fees, forced insurance, penalties, fines, and other related gingerbread to jack up its ultimate profits. By its own admission Wells Fargo has no intention to mediate or settle this case. It is in the best interest of Freddie Mac not to incur a substantial loss of at least $100,000 by selling the home in foreclosure, which loss will be borne by American taxpayers. The only way Freddie Mac can avoid this loss is for the conservator to be joined into the case and make a reasonable decision to avoid a substantial loss in a pending foreclosure.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. 2.
For the above reasons, and to obtain a speed settlement to avoid countless hours of court time in the next year, plaintiff asks the court to grant an order for leave to amend the complaint to add the FHFA Director. Plaintiff believes the FHFA Director will be inclined to settle and dismiss the action. Wells will NEVER settle and have made that clear in its Rule 20(f) statement.
dated: 4/01/2013 DECLARATION OF COUNSEL NANCY DUFFY MCCARRON I, NANCY DUFFY MCCARON, declare: I am over 18 and not a party to the action. I represent plaintiff in this action and At no time did any person or counsel representing Wells Fargo or Cal-Western make these statements based personal knowledge and am prepared to testify to them. Reconveyance Corporation ever disclose that Freddie Mac was under a conservatorship. If I had known this fact when I filed the case on November 29, 2012 I would have named the Director of FHFA as the conservator for Freddie Mac. 3. I did not even discover that Freddie Mac owned, or purported to own, the Alles loan until I filed the litigation. We were dealing with Wells Fargo, purported loan servicer, in applying for a loan modification in 2012. 4. I believe that Wells Fargo and/or Freddie Mac securitized the Alles loan back on September 13, 2012 into a securitized REMIC trust. Counsel for Wells Fargo refused to disclose the name of the trust or its trustee despite a duty to voluntarily disclose facts and documents under Fed. R. Civ. P 26(f). The investors in the REMIC trust certificates would be the actual beneficiaries (noteholders) owning fractional beneficial interests in the intangible note and intangible security (the trust deed securing the debt obligation). 5. After Wells Fargo denied Alles loan modification, I immediately appealed and filed an escalation complaint with Freddie Mac. I believe within a day after the appeal was
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received at Freddie Mac the loam modification was denied based on a telecom with John, the agent handling the appeal. Despite a written promise not to Notice a Sale during the appeal window CWR recorded a Notice of Sale on 12/7/2012 the same days as a denial. 6. After the court issued a Joint Rule 26 order I prepared draft, with notations in RED for items CWRC & Wells Fargo needed to fill in, including identifying related entities. Adam Hamburg notified me that he would not sign my draft and insisted on preparing the report on his firms template. I reminded him to disclose related entities as both parties failed to identify any related entities except Promiss Solutions (identified by CWRC). 7. My proposed draft was identical to the courts order shown below except that I highlighted line 6 in RED and reminded both counsel identify any related entity.
The final Joint Rule 26 Report Adam Hamburg filed with the court is shown below:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Adam Hamburg not only intentionally ignored the line from the court order, which I
had highlighted in RED and reminded counsel to disclose, he actually DELETED the entire line from the end of subsection D before subsection E. DAMAGES. Wells also did not disclose Freddie Mac of FHFA in its mandatory Certificate of Interested Parties shown in an excerpt below:
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9.
This demonstrates a concerted effort on the part of Wells Fargos counsel to conceal
the fact that Freddie Mac was an interested party and that FHFA was an interested party. This shows that Wells Fargo continues its long history of not being transparent or ethical. 10. After Alles application for a loan modification was denied, and her appeal was denied within a day after being received by the escalation department of Freddie Mac, Wells Fargo barreled forward with foreclosure. No one ever told me or Alles that the FHFA was conservator, and that it had imposed a Servicer Alliance Initiative (SAI) to promote foreclosure alternatives, or that HFA had revised its classic modification program with a new program designed to afford modifications to borrowers who did not qualify under HAMP or HARP. No one told me that FHFA had expanded a suite of loan modification tools, including a Streamlined Modification Initiative (SMI) option to give delinquent borrowers another path to avoid foreclosure. The borrower is offered a chance to make 3 payments on time, and if made, the borrower is given a permanent modification. This is exactly what Alles had requested which was willfully concealed. [Exh. A herein]. I believe the FHFA Director in joined would offer it to settle the case. 11. Plaintiffs counsel asked Wells Fargos counsel to stipulate to joinder in a meet & confer on this motion on March 13, 2013 but Mr. Hamburg refused. 12. I filed a Complaint with the FHFA, the US Attorney General, the California Attorney General, and various federal and state agencies on March 30, 2013 by email. Complaint is attached in a Request for Judicial Notice filed with this motion. [as Exh. E] I found 22 violations of a Consent Agreement Wells Fargo executed on 4/4/2012 in which it agreed to abide by Servicing Guidelines prohibiting certain illegal and unfair practices Wells Fargo had been engaging in during foreclosures in the past several years. Many of these violations are now codified as California Homeowners Bill of Rights effective 1/1/2013. Although laws were not statutorily mandated until 1/1/13 and Alles foreclosure began August 2/2013 with the Notice of Default recording, Wells Fargo was still required to comply by the consent agreement executed and signed on 4/4/2012.
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It is effective for 3 years until April 2, 2015. 13. The 5 exhibits included in RJN filed herewith contain copies of actual documents. I declare the above true under penalty of perjury and US law. Executed in Santa Barbara
dated: 4/01/2013
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Dated: 4-1-2013
PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA At the time of service I was over 18 years of age and not a party to this action. I am attorney for plaintiff. My address is: 950 Roble Lane, Santa Barbara, CA 93103. On April 1, 2013 I served true copies of the following document(s) MOTION TO JOIN DIRECTOR OF FHFA AS CONSERVATOR FOR FREDDIE MAC with Declarations of Nancy McCarron & Carole S. Alles, RJN, Notice of Lodging Order, with pdf copy of proposed order [ Doc & pdf format proposed order sent to Judge by email to: mwf_chambers@cacd.uscourts.gov]. The documents were served to:
Adam S. Hamburg, Atty for Wells Fargo Prenovost, Normandin, Bergh & Dawe Broadway, Suite 200 Santa Ana, CA 92706-2614 714-547-2444 fax 714-835-2889 ahamburg@pnbd.com Helen Cayton, Atty for CWRC Wright, Finlay & Zak LLP2122 No. 4664 MacArthur Court, Suite 200 Newport Beach, CA 92660
949-477-5050 ext.1024 fax 949-608-9142 hcayton@wrightlegal.net
Courtesy copy sent by email to: Director@fhfa.gov; DeputyDirector-enterprises@fhfa.gov;

GeneralCounsel@fhfa.gov; Ombudsmen@fhfa.gov
BY CM/ECF NOTICE OF ELECTRONIC FILING:
I electronically filed the
document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered with CM/ECF users will be served by mail or by any other means permitted by the court rules, and/or agreed by the parties. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am a member of the bar of the Court at whose direction the service was made. Executed on April 1, 2013 at Santa Barbara, CA.
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Motion-Joinder FHFA 4-29-13

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Motion-Joinder FHFA 4-29-13

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ANALYSIS IS SAME UNDER AND

FEDERAL RULES OF CIVIL PROCEDURE, RULE 17(A)

Courtesy copy sent by email to: Director@fhfa.gov; DeputyDirector-enterprises@fhfa.gov;

BY CM/ECF NOTICE OF ELECTRONIC FILING:

I electronically filed the

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