1. It isn’t illegal or prejudicial to a plaintiff trustee’s case for it to have acquired rights or be assigned a mortgage AFTER a borrower is in default — but it DOES raise issues of fact that must be heard by the Court. Since the Mortgage went into default there are several possibilities:
(a) under the pooling and service agreement the original lender might be the responsible party and unless that original lender is STILL in privity with the CURRENT (was there a substitution?) trustee, the trustee might not be getting instructions from the real beneficiary.
(b) under the assignment(s) the real beneficiary might have changed as well.
(c) Remember that there are at least three Trustees in securitization — the Trustee on the Deed of Trust, the Trustee of the Pooled Assets, and the Trustee for the owners of certificates of mortgage backed securities. There are also substitutions of Trustees at all levels. Each of these Trustees, in order to have any relevance to the case must have the acquired legal enforceable rights. The acquisition of legal enforceable rights is ONLY through a document of transfer that identifies the Grantor as the party who has the power to appoint the Trustee and his/her/its powers. So the mere existence of a “Trustee” cannot be established by an allegation or declaration from the Trustee. For example, the Trustee for the owners of certificates of Mortgage Backed Securities is usually limited in his/its responsibilities to litigate. The usual provision in the certificate is that the Trustee for the holder of asset backed securities series 2007-A etc. is that the owners must agree to the litigation and agree to pay for it. Otherwise the Trustee is stuck with paying for it.
(d) Just because someone calls themselves a Trustee doesn’t mean they are a Trustee with any relevance to your transaction. In fact, they might not be a Trustee at all if there is no “Trust Instrument.” And if they are a Trustee, odds are the beneficiaries under the Deed of Trust are (1) not the originating lender, (2) not the mortgage wholesaler/aggregator and (3) probably not the owners of the securities that were issued. In the evisceration of the security instrument by playing fast and loose with the assignments, proceeds of notes, over collateralization, cross collateralization, insurance, credit default swaps guarantees and federal bailouts, the relationship of the Trustee to the actual mortgage transaction appears to have been cut or at least reduced to a gossamer thread with powers so limited, that they can only be exercised if the Trustee proves a proper foundation of his/her/its actions — i.e., by the inclusion of necessary and indispensable parties.
2. after the world is put on notice through a defendant’s recorded lien filed against subject property BEFORE a mortgage on same was securitized, claiming that there has been fraud in the inducement, a forgery, unclean hands, etc. what does that do to a party claiming to be a ‘holder’, or a ‘holder in due course’ — this produces a requirement that any party intending to foreclose must remove that cloud on title before proceeding. If you succeed in getting something like that recorded, you have succeded on putting the burden on the “lender” to file judicially and make actual allegations in a foreclosure lawsuit that they have to prove before the burden shifts to you. This they usually cannot do and the case is very often dropped.
Filed under: CDO, CORRUPTION, Eviction, GTC | Honor, Investor, Mortgage, bubble, currency, foreclosure, politics, securities fraud | Tagged: borrower, Chapter 13, disclosure, Federal reserve, foreclosure defense, foreclosure offense, Lender Liability, rescission, securitization, trustee
To homeowners and the like who are facing same situation as quoted by “Diane on December 31st 2008, need to do two very important documents;
1: File a Substitution of Trustee
2. File a Revocation of Power of Attorney
Both of these are done filed by the Trustor (who is the Borrower). They and they alone have signatures on the Trust Deed, and because there is no signatures from a Trustee, Beneficiary, Lender, Bank Official or for that matter anyone else…. This is deemed a UNI-LATERAL CONTRACT which in layman’s terms means the Homeowner may change theses above named documents, in addition to others.
All Contracts to be enforceable by any form of law are required to be signed by two parties and in the Real Estate, in most states require 2 – 3 witnesses as in Florida.
Hope this helps another Lay-person. For further non-legal, non lawyer nor financial advice, they may call 503 895 4146 or email cci_andrew@hotmail.com
annie: Aurora shows up as Lehman Brothers front. I suspect Roswell is just another Lehman front to avoid the bankruptcy judge in New York and the Trustee.
Wants to know what the answer to Diane question? I am presently in Bankruptcy. My loan was with Aurora Loan Services, Aurora sold my loan to Roswell Properties. I asked my attorney whether I was still in default in my loan, since Roswell brought loan from Aurora.
This is exactly the point I’ve been trying to convey to many others who have experienced a servicing transfer in the midst of their foreclosure or trustee sale proceedings.
In layman’s terms (my terms), how can a lender who claims to be the rightful beneficiary and servicing entity simply pick up and move forward with a foreclosure proceeding the prior beneficiary began. I have paperwork from one lender, in the my case it is Greenpoint stating that my trustee sale date is Jan. 8, 2009 which was set prior to the sale of the note to Countrywide. Now that Countrywide holds the right to foreclose since they are the “holder in due course” and Greenpoint has been paid off why am I required to follow the authority of a trustee that no longer is of record, a lender that no longer owns my loan to sell my home at auction on Jan. 8th? I don’t get it? No recorded assignment, no sale. Am I wrong??
Judicial or non-juducial. Am I wrong?