UPDATE: Jan 19, 2021. In the Alexander case at the lower court, the Morse code didn’t work and the ship sank as it never made it to trial (no surprise there). Judge Ellison grants foreclosure judgment to the bank. The case is currently on appeal at the Court of Appeals for the Fifth Circuit, but it needed to be reinstated first, which lawyers will get without issue (not so much pro se). We’ve downloaded the Appellant’s Brief which was filed on Jan. 11, 2020.
Earlier commentary: We’ve been watching the paint dry as time rolls by in the Alexander case and the scheduling order falls foul of every deadline known to man or both sides and the court fell asleep. But someone woke in February long enough to request a swop of plaintiffs, from Wells Fargo Bank to MTGLQ Investors (a Goldman Sachs company).
Below we have provided some insight into who are MTGLQ Investors. However, that doesn’t answer why the scheduling order is not being followed and why there has been little or no movement on this case in the last year.
Here’s why Goldman Sachs is snatching up delinquent mortgages
Bank dominates Fannie Mae non-performing loan sales
Originally Published; March 16, 2017 | Republished by LIT; April 9, 2020
Goldman Sachs’ purchase of a portfolio of non-performing loans from Fannie Mae earlier this week marked only the latest in a long string of purchases of severely delinquent home loans from the government-sponsored enterprise, according to an article in The Wall Street Journal by Liz Hoffman and Serena Ng.
Over the past year and a half, the article stated, Goldman Sachs acquired nearly two-thirds of $9.6 billion in loans Fannie Mae auctioned off.
While Goldman Sachs didn’t take the all the loan pools from Fannie Mae in the most recent sale, it did purchase three of the four non-performing loan pools, with a total of $1.43 billion in unpaid principal balance.
The purchases are completed by MTGLQ Investors, a “significant subsidiary” of Goldman Sachs.
Given its commitment to buying delinquent loans, MTGLQ Investors has cropped up in a lot of NPL sales from both Fannie Mae and Freddie Mac.
Last year, MTGLQ Investors bought billion-dollar pools of NPLs from Fannie and Freddie in several different sales.
The Wall Street Journal explains why:
The Wall Street giant’s loan-buying spree is one strange reverberation of the housing crisis. In ramping up a mortgage-buying operation that had lain low since the meltdown, Goldman is trying to make money even as it looks to fulfill terms of a government settlement that calls for it to help struggling homeowners.
Goldman was among the last of the big U.S. banks to agree to pay billions of dollars to federal and state governments for their roles packaging and selling securities in the mortgage meltdown. Its $5.1 billion pact, reached in April 2016, included $3.3 billion in fines and $1.8 billion in “consumer relief.”
However, the article explained that Goldman Sachs’ problem is that is wasn’t a big originator of home loans, and it sold its mortgage-servicer in 2011. It didn’t have any mortgages to give loan modifications to borrowers to count as its consumer relief.
From the article:
Without a ready supply of mortgages, the bank has gone into the market with the goal of restructuring the loans to receive credit under the settlement, according to people familiar with its purchases.
Eric Green, who serves as independent monitor of the Goldman Sachs settlement, gave a progress report on the consumer relief obligations under the $5 billion settlement back in February.
Green, at the time, noted that Goldman Sachs is “off to a good start.”
Green’s report showed that Goldman Sachs earned credit for $107,924,047 in consumer relief through the forgiveness of unsecured debt and other debt, more junior than second liens, in connection with 4,988 loans.
All total, adding in the “test sample” of 100 loan modifications considered in the Green’s initial report, Goldman Sachs received conditional approval for $113,698,926 worth of credit, Green’s office said.
Goldman Sachs reportedly won’t stop buying loans after it completes its consumer relief obligations.
From The Wall Street Journal:The bank’s immediate goal is to get credit for the settlement, though the longer-term goal is to make money over time, the people said. That can happen by the firm collecting mortgage payments if it gets borrowers back on track, or by selling the loans once the borrowers are up-to-date again.
WELLS FARGO BANK, N.A. fka and successor in interest to WACHOVIA MORTGAGE CORPORATION v. Alexander (S.D. Tex. 2019)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:19-cv-00616
|WELLS FARGO BANK, N.A. fka and successor in interest to WACHOVIA MORTGAGE CORPORATION v. Alexander
Assigned to: Judge Keith P Ellison
Cause: 28:1332 Diversity-Breach of Contract
|Date Filed: 02/21/2019
Jury Demand: Defendant
Nature of Suit: 220 Real Property: Foreclosure
|WELLS FARGO BANK, N.A. fka and successor in interest to WACHOVIA MORTGAGE CORPORATION||represented by||Robert L Negrin
Aldridge Pite, LLP
701 North Post Road
Houston, TX 77024
Fax: (858) 412-2798
ATTORNEY TO BE NOTICEDRobert Young Petersen
25543 Pacer Circle
Tomball, TX 77375
ATTORNEY TO BE NOTICED
|Tina Alexander||represented by||Harry Edson Morse
Bohman Morse LLC
650 Poydras Street, Ste. 2710
New Orleans, LA 70130
PRO HAC VICE
ATTORNEY TO BE NOTICED
There are proceedings for case 4:19-cv-00616 but none satisfy the selection criteria. (No further case updates, when experts report and/or witnesses due 11/1/2019 – nothing filed).
|PACER Service Center|
ETT: 1 day. Bench trial.
Amended Pleadings due by 9/6/2019.
Joinder of Parties due by 6/7/2019
Pltf Expert Witness List due by 11/1/2019.
Pltf Expert Report due by 11/1/2019.
Deft Expert Witness List due by 12/6/2019.
Deft Expert Report due by 12/6/2019.
Discovery due by 1/10/2020.
Dispositive Motion Filing due by 3/9/2020.
Non-Dispositive Motion Filing due by 3/9/2020.
Joint Pretrial Order due by 6/1/2020.
Bench Trial set for 6/8/2020 at 09:00 AM in Courtroom 3A
Houston before Judge Keith P Ellison.(Signed by Judge Keith P Ellison) Parties notified.(kpicota, 4) (Entered: 04/23/2019)
July 3, 2019 – Alexanders Short Answer to Complaint (see below)
Sept 10, 2019 – Initial Disclosures
|Opening Date||Last Docket
|Originating Case Number
MTGLQ Investors v. Alexander
|0541-4 : 4:19-CV-616
Southern District of Texas, Houston
United States Court of Appeals for the Fifth Circuit
There is no difference between former Judge Pomrenke’s acts and the fraud upon fraud executed by the judges of the court of appeals for the 11th Circuit in case 19-13015. Where it does differentiate is that it’s a group mob of outlaws in robes at an appellate circuit. #justice https://t.co/2EWkBppeOz pic.twitter.com/cXBZ7P0Il4
— LawsInTexas (@lawsintexasusa) January 16, 2021
Tina Alexander Lawyers Up with Constitutional Law Firm from Louisiana
With the State Supreme Court reversing the Fifth Circuits’ Erie Guess in Priester, Alexander is back and this time she’s got some heavy artillery on her side in the name of Bohman Morse.
The US Supreme Court’s decision in Batterton (and opinion).
And it is a 6-3 opinion. With not just the exact outcome (6-3) but the exact judges I predicted in March (immediately below). Which just goes to show that (a) anybody can get lucky, and (b) some of this stuff is more predictable than folks might have you believe.
Priester I (2013) was decided Before DAVIS, JONES, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge wrote the Opinion.
Interesting fact: Jerry Smith was recently very derogatory to a SDTX Judge (Ellison) who was having none of it. Oh, and who was Jerry Smith defending – JPMorgan Chase. We have previously shown how the same Judges are on Panels continuously for the same lender at the Fifth Circuit.
Secondary market mortgage buyer can ignore public assistance income
Another Tina Alexander Case which went before the Fifth Circuit
A bank that refused to consider Section 8 housing aid when it decided which mortgage loans met its criteria for secondary market purchases did not violate the Equal Credit Opportunity Act, according to the U.S. Court of Appeals for the Fifth Circuit. Rejecting the Consumer Financial Protection Bureau’s argument for a broader definition of “creditor” under the ECOA, the court said the bank did not participate in the lender’s credit decisions (Alexander v. AmeriPro Funding, Inc., Feb. 16, 2017, Jolly, E.).
Consumers who wanted to buy homes in the Houston, Texas, area sued Wells Fargo Bank and AmeriPro Funding for claimed ECOA violations. According to the consumers, Wells Fargo’s secondary market purchase guidelines explicitly said the bank would not buy mortgages if the buyer’s income came in part from Section 8 assistance.
Since AmeriPro wanted to be able to sell mortgages it originated to Wells Fargo, it likewise refused to consider Section 8 assistance.
However, the ECOA makes it illegal for a creditor to discriminate against an applicant because some or all of the applicant’s income is from a public assistance program (15 U.S.C. §1691(a)(2)). AmeriPro directly violated this ban, the consumers claimed, and Wells Fargo violated it as well because its guidelines amounted to participating in AmeriPro’s credit decisions.
Consumers and claims. To analyze the claims, the court divided the 12 consumers into three separate groups:
- four consumers who submitted applications to AmeriPro;
- six consumers who made inquiries with AmeriPro but apparently were discouraged from making applications; and
- two consumers who submitted applications directly to Wells Fargo as a loan originator.
AmeriPro applications. The court had little trouble deciding that the four consumers who submitted applications to AmeriPro had described an ECOA violation. They claimed to have been told the credit they wanted was unavailable because AmeriPro could not sell loans that were based on Section 8 income. That was enough to describe discrimination.
Loan buyer discrimination. Potentially the most significant discussion addressed the same four applicants’ claims that Wells Fargo was a creditor under the ECOA and that it had discriminated against them. Despite the CFPB’s arguments supporting the consumers, the theory was rejected.
Looking at the ECOA’s definitions of “applicant” and “creditor,” the court decided that Wells Fargo could be a creditor only if it participated in the decision to extend credit. The bank’s secondary market purchasing guidelines did not constitute participation in the credit decision.
The CFPB argued for a broader view of participation, such as that included in Reg. B. However, even Reg. B would not include “those who have no direct involvement whatsoever in an individual credit decision,” according to the court.
Other lending. This could be seen as bringing into question the CFPB’s guidance on the ECOA, Reg. B—Equal Credit Opportunity (12 CFR Part 1002), and indirect auto lending. The bureau has, since issuing guidance in 2013, held and enforced the position that indirect auto lenders—companies that buy loans originated by automobile dealers—are creditors and can be responsible for the dealers’ discriminatory practices (see CFPB Bulletin 2013-02, Banking and Finance Law Daily, March 21, 2013).
However, the bureau’s position in this case seems to have gone one step farther than its indirect auto lending guidance. The process described in the 2013 bulletin included the dealer forwarding the consumer’s credit information to one or more potential loan borrowers, who then would make an individual decision as to whether to buy the loan.
While mortgage loan originators may follow a similar practice in finding investors to fund a loan, the court opinion did not indicate that Wells Fargo, as a secondary market buyer, was consulted on individual loans before credit decisions were made.
In fact, the court’s reference to direct involvement in an individual credit decision could imply that there was no such prior consultation.
Wells Fargo applicants. The court swiftly dispensed with the claims of the two consumers who applied directly to Wells Fargo. The consumers were applicants under the ECOA, and Wells Fargo was a creditor, the court agreed. However, the consumers had offered nothing to show that the bank had discriminated against them as a lender. Rather, they relied only on the bank’s secondary market purchase guidelines.
The ECOA applies only to loan originators, the court said, not to secondary market buyers. Moreover, what Wells Fargo did as a loan buyer was distinct from what it did as a loan originator. There was no showing that Wells Fargo refused to consider Section 8 income when it originated loans, the court noted.
Application requirement. The consumers who only made inquiries were not applicants under the ECOA and thus were not protected by the law, the court decided. The ECOA said that a creditor who violated the law was liable to an “aggrieved applicant,” and to be an applicant one must actually request credit.
It was possible that the consumers were discouraged from making an application because they were told their Section 8 income would not be considered, the court conceded. Also, Reg. B banned creditors from discouraging applications on a prohibited basis, the court observed. However, the ECOA does not allow a suit by an “aggrieved prospective applicant.”
The CFPB can enforce a regulatory ban on discouragement, the court said, but that did not mean there was a private right of action if the law did not provide one.
The case is No. 15-20710.
Attorneys: Joseph Y. Ahmad (Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.) for Tina Alexander. Daniel J.T. McKenna (Ballard Spahr LLP) for Ameripro Funding, Inc. Jon Maxwell Beatty (Diamond McCarthy LLP) for Amegy Bank National Association. Robert Thompson Mowrey (Locke Lord LLP) for Wells Fargo Bank, N.A.
Companies: Amegy Bank National Association; AmeriPro Funding, Inc.; Wells Fargo Bank, N.A.
Fifth Circuit Rejects Arguments to Expand Scope of Liability under the Equal Credit Opportunity Act
The U.S. Court of Appeals for the Fifth Circuit rejected arguments that would have expanded the scope of liability under the Equal Credit Opportunity Act for lenders, or other participants, in the secondary mortgage market. The authors of this article explain the court’s ruling.
In a published opinion, the U.S. Court of Appeals for the Fifth Circuit rejected arguments that would have expanded the scope of liability under the Equal Credit Opportunity Act (“ECOA”),1 for lenders, or other participants, in the secondary mortgage market. The case is Alexander v. AmeriPro Funding, Inc.2 The appeal was from the dismissal of all of the plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Originally published in the The Banking Law Journal.
Please see full article below for more information.