Max Gardner’s Top Reasons for Wanting a Pooling Servicing Agreement

EDITOR’S NOTE: Lest people think I invented this whole field of law just because I’m loudest about it, here is a post from Max Gardner, who only a few days after I started this blog had already figured out everything I had figured out and was already doing something about it.

Max Gardner’s Top Reasons for Wanting a Pooling Servicing Agreement

Monday, November 5th, 2007

Every time I file a civil action against a mortgage servicer the very first document I want is a copy of the “Pooling and Servicing Agreement.”  This is the legal document that creates the securitized trust of mortgage loans and also strictly provides for the duties of all entities who are assigned the responsiblity of servicing loans for the Trust.

For all “public placements” or “public offerings,”  the Pooling and Servicing Agreement is always filed on Form 8-K with the Securities and Exchange Commission.  All such documents can be found by conducting a search of the SEC’s website through an internal search engine known as “Edgar.”  But, what is a PSA?  Why do I want to see it? What can be found in the PSA?  Kevin Byers, a forensic accountant, who works with me on these cases, has assisted me in developing the following list of reasons why any consumer must have the PSA.  The reasons are as follows:

Pooling and Servicing Agreements (PSA)Top Twenty Reasons to Request ProductionKevin Byers and O. Max Gardner III

In no particular order, these are some of reasons you need to request through formal discovery in any mortgage-related case the PSA Agreement and why it is relevant:

1.     It is a contractual document naming the parties to any given securitization, important for standing issues.  The document will list the Sponsor, the Trustee for the Securitized Trust, the Master Servicer, and all primary and secondary servicers.

2.     It provides address for all necessary parties including “notice” addresses for the service of legal process. 3.     It outlines the specific duties of the Servicer and/or the Master Servicer as well as the Trustee on behalf of a respective trust. 4.     It contains the representations and warranties of all parties to the agreement, including the Servicer and/or Master Servicer.

5.     It includes all representations provided by the Depositor of the loans into the trust as the same relate to important consumer protection issues related to the underwriting and origination of the loan, such as conformity with anti-predatory lending laws, full-file credit reporting, title insurance coverage, and validity and content of individual loan files.

6.     It gives the conditions under which a prepayment penalty may be waived or modified by the Servicer and/or Master Servicer. 7.     It oftentimes will outline specific loss mitigation and foreclosure avoidance measures available to the Servicer, including, for example, forbearance and loan modification, principal reductions, interest reductions and interest changes.

8.     It defines a “defective mortgage loan” and describes the circumstances and process by which the lender must repurchase a loan.

9.     It establishes the rights of the Trustee under the Trust to force the Depositor/Originator of any loan to repurchase a loan under the recourse provisions. 10.    It describes the specific process by which a delinquent loan can be charged off and the subsequent servicing party and procedures that apply to such charged-off loan. 11.    It provides guidelines on loan-level advances that must be paid by the servicer. 12.    It provides details regarding the mechanics of how the Servicer must go about foreclosing on property, what documents need to be requested and/or recorded and what authorizations need to be granted to foreclose, and in whose name the foreclosure must be filed. 13.    It provides guidance on the fees a Servicer may retain as compensation in the administration of the loans, for example, NSF fees, late fees, loan modification or assumption fees.

14.    It will contain the Mortgage Loan Schedule, important to verify the ownership of the loan on behalf of the Trust.

15.    It details the requirements for mortgage assignments and when these will or will not be recorded and the implications of the failure to record such assignments. 16.    It details the specific loan documents contained in each loan file that will be delivered to the Trustee or Document Custodian on behalf of the trust, establishing who holds the original Note and where it may be found.

17.    It describes the credit enhancements that have been deployed to enhance the rating of the most secure certificates of investment in the Trust.

18.    It provides rules and procedures for the rights of the Master Servicer or the Primary Servicer to accept a deed-in-lieu of foreclosure or a short sale of the property so as to avoid a foreclosure.

19.    It describes the rights the Originator/Depositor may retain the Residual Value of the Trust and the extent to which the residuals may be used as credit enhancements.

20.    It will name a default servicer and describe when a loan is considered to be in default and outline the process for the transfer of servicing rights.

O. Max Gardner IIIHistoric Webbley House

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22 Responses

  1. We refinanced 9/25/03 and we never got our closing papers until 3/17/08. We had paid over $150,000 in payments and zero was credited to our principal. I had been contacting the bank and they refused payment on 3/05/08 being 18 days late. We actually didn’t have a contract without the closing papers. We noticed that the mortgage amounts and the interest rates were different on TILA, mortgage note and settlement sheet. We also realized that our signatures were forged on the “Right to Cancel forms”. We were given 2 copies each at the closing that is all we received that day. When we finally got copies 4 1/2 yrs later they sent us 6 copies all with different signatures. We went to a HUD approved credit counselor on 3/24/08 who contacted the bank and they stopped the foreclosure. The bank VP requested copies of all our documents which he would look over and get back to the credit counselor. On 3/28/08 all the documents were faxed to the bank (over 200). The bank employee would not allow us to make any payments until he was able to review everything. The bank knew they were screwed and we had a right to rescind the loan. The counselor also requested documents from the bank snd they never complied. The credit counselor left numerous messages which were all ignored over the course of 4 months. The bank never responded to our complaint and never acknowledged all the proof that was sent to them which proved all the acts that were violated, over $150,000 in misappropriated funds, forgery, refusing payments etc. The still would not allow us to make payments therefor trying to create a fraudulent default. We received a notice in July 2008 stating there would be a foreclosure sale on 8/19/08. I called the credit counselor flipping out because we complied with the banks request to produce our documents. The bank never responded after we provided proof of all the illegal and unethical actions and refused to allow us to make payments. The credit counselor left numerous messages again following the notice of sale received on 7/22/08. The bank never responded until 8/15/08. I got a call from the CC on 8/15/08 and was told that we had to make a payment of $12,000 by 8/18/08 and $1,000 fee to CC. I informed the CC that we want to pay the full arrearage that we now owed because the bank refused to allow us to make payments after stopping improper foreclosure on 3/24/08. I also informed him that I am not paying late and legal fees because of the banks refusal to allow us to pay. I got a return call after the CC informed the bank of our requests. Our payments were 2,008.86 a month. The bank refused to allow us to pay more than the requested $12,000 but agreed that the sale would be cancelled. We recived a copy of the agreement made with the bank. On 8/19/08 the CC hand delivered the payment to the banks attorney. The banks attorney deceived the CC who is legally blind. He was left waiting for almost 2 hours for a receipt of the payment but instead he was given a new letter that the attorney typed up after contacting the bank. The new letter stated that the sale was postponed until 9/18/08. I made the CC aware after receiving a copy in the mail. The CC was infuriated at the attorneys deception obviously taking advantage of the CC disability.+w[ll it in this week no fake shit from usf

  2. We refinanced 9/25/03 and we never got our closing papers until 3/17/08. We had paid over $150,000 in payments and zero was credited to our principal. I had been contacting the bank and they refused payment on 3/05/08 being 18 days late. We actually didn’t have a contract without the closing papers. We noticed that the mortgage amounts and the interest rates were different on TILA, mortgage note and settlement sheet. We also realized that our signatures were forged on the “Right to Cancel forms”. We were given 2 copies each at the closing that is all we received that day. When we finally got copies 4 1/2 yrs later they sent us 6 copies all with different signatures. We went to a HUD approved credit counselor on 3/24/08 who contacted the bank and they stopped the foreclosure. The bank VP requested copies of all our documents which he would look over and get back to the credit counselor. On 3/28/08 all the documents were faxed to the bank (over 200). The bank employee would not allow us to make any payments until he was able to review everything. The bank knew they were screwed and we had a right to rescind the loan. The counselor also requested documents from the bank snd they never complied. The credit counselor left numerous messages which were all ignored over the course of 4 months. The bank never responded to our complaint and never acknowledged all the proof that was sent to them which proved all the acts that were violated, over $150,000 in misappropriated funds, forgery, refusing payments etc. The still would not allow us to make payments therefor trying to create a fraudulent default. We received a notice in July 2008 stating there would be a foreclosure sale on 8/19/08. I called the credit counselor flipping out because we complied with the banks request to produce our documents. The bank never responded after we provided proof of all the illegal and unethical actions and refused to allow us to make payments. The credit counselor left numerous messages again following the notice of sale received on 7/22/08. The bank never responded until 8/15/08. I got a call from the CC on 8/15/08 and was told that we had to make a payment of $12,000 by 8/18/08 and $1,000 fee to CC. I informed the CC that we want to pay the full arrearage that we now owed because the bank refused to allow us to make payments after stopping improper foreclosure on 3/24/08. I also informed him that I am not paying late and legal fees because of the banks refusal to allow us to pay. I got a return call after the CC informed the bank of our requests. Our payments were 2,008.86 a month. The bank refused to allow us to pay more than the requested $12,000 but agreed that the sale would be cancelled. We recived a copy of the agreement made with the bank. On 8/19/08 the CC hand delivered the payment to the banks attorney. The banks attorney deceived the CC who is legally blind. He was left waiting for almost 2 hours for a receipt of the payment but instead he was given a new letter that the attorney typed up after contacting the bank. The new letter stated that the sale was postponed until 9/18/08. I made the CC aware after receiving a copy in the mail. The CC was infuriated at the attorneys deception obviously taking advantage of the CC disability.+w[ll it in this week no fake shit from us

  3. Anyone know a way to phone foreclosureblues?? Have a question – and do not want to email.

  4. TRANCHE WARFARE ON MERS CREATED GOLD FOR THE DON’T BETTORS
    Posted on August 27, 2010 by Foreclosureblues
    http://foreclosureblues.wordpress.com/

    EDITOR’S NOTE…TANTA (RIP) IN THIS 2007 POST REFERENCES AUDITOR RUMBLINGS ABOUT WHY INVESTMENT BANKS WERE PAYING UP FOR THE FUNKIEST LOANS. THEY NEEDED THEM TO HAVE SOMETHING TO BET AGAINST. ALTHOUGH SHE DID NOT ENVISION THE DEGREE OF ULTIMATE MELTDOWN, SHE DEFINITELY SMELLED THE ROT. WISH SHE WAS STILL HERE TO ARTICULATE AND EXPOSE THE REALITY THAT THE TOP INVESTMENT BANKS WERE BETTING “DON’T PASS”, BUT YOU’VE GOT TO HAVE ROLLING DICE AND SOMEONE TO PAY OFF THE BET OR YOUR CORRECT BET IS NO GOOD.

    http://foreclosureblues.wordpress.com/2010/08/27/tranche-warfare-on-mers-created-gold-for-the-dont-bettors/

  5. Deena

    If it is not on the SEC website – it was not a “mortgage backed securities” Trust. Thus, not securities according to SEC. MBS must have Triple AAA rating in order to register as MBS. Of course, the MBS were not really Triple AAA rated anyway – but that is another story.

    What you are talking about is likely “scratch and dent” “securitizations”. Again, not really securities – but derivatives of the kick- outs of the original (MBS) trusts. Many private label did claim to be legitimate MBS – even though ratings were not valid.

    Scratch and dents are simply “re-structured” default/delinquent/non-performing (many falsely labeled as such)/breach of contract (by originator underwriting) /predatory lending violations etc loans – that were not capable of being securitized. But, in effect, all the subprime mortgage loans should have scratch and dents – none conformed to the Mortgage Loan Purchase/Repurchase Agreements. Which, leaves the questions were the loans secured to begin with – or just unsecured debt??

  6. Deena- try looking for your private issue PSA using The Consus Group. You have to pay for it, but you are given a brief look at the contents. If no luck there, try ABSNET, same thing, a brief look and then pay to download. Good luck, let us know if this works.

  7. Any suggestions as to how to get the Pooling and Servicing Agreement for a “Private Label” trust? The alleged trust that holds my loan is private. It is not on the SEC website. I have tried calling the trustee and probably anything you can imagine.

    If I can get my hands on the PSA; I think it would definitely turn things around for me.

    ANY SUGGESTIONS ARE WELCOME!!

  8. Dear M Turner,

    could be so kind as to providing Mr. Bryl’s information and website, I was unable to get his info through a Google search.

    Thanks for your feed back.

    Thomas Jefferson must be puking in his tomb.

  9. CAN SOME EXPLAIN THIS CONTRADICTION…?

    Foreclosure Mills proclaim they are not responsible thus not liable for the “accuracy” of the Loan Docs because their Client does not require they need to check the documents.

    This is a contradiction to the rules of the court – a lawyer cannot submit false documents and MUST by law make sure what they submit is true & accurate… So, how is this being permitted… but more importantly – doesn’t that little disclaimer automatically pass liability onto the servicer – lender – trust – (client) for whom they represent?

    The PSA clearly states the Foreclosure Mill (trustee, substitute trustee, etc) is not liable for the accuracy of the loan docs – but they ARE LIABLE for their incompetence or negligence…

    Also – these mortgages are sold “WITHOUT RECOURSE” to the sponsor – sold to the depositor – etc… I might be wrong but it appears to me that “WITHOUT RECOURSE” is a fancy way of saying “as-is” thus they are essentially buying the mortgage (Instrument) in “as-is” condition – then they’ve created a little blurb requiring the seller “repurchase” the loan for specific reasons…

    However, that “repurchase” clause does NOT Prohibit or limit the borrower from holding liable the servicer, lender, or even Trust. So, essentially that “WITHOUT RECOURSE” is like buying a car in as-is condition – you get you pay for as is – end of story. Further – this is even closer to purchasing a Corporation than a tangible item. Whenever someone buys a business – they most always ONLY purchase the assets of the corporation with the right of continuing the name-brand etc. They almost never purchase the CORPORATION because of “unknown” liabilities hidden in the books or whatnot…

    Why aren’t these mortgage loans treated the same way…?

  10. “CULPABLE PARTICIPANT” TEST

    You may consider the chance to wreck judicial havoc on a stubborn lender named as a defendant in your current or anticipated wrongful foreclosure suit (please verify with counsel as only an attorney can advise here).

    Herein is the latest that maybe used to proceed with litigation including a plaintiff’s right to prosecute their case under “controlling person liability”.

    Read on fellow experts who testify in related or similar matters pending before the court. Our objective here is contemplating the judicial appropriateness for considering a director or officer may incur controlling person liability for fraud and other violations committed by another person.

    Why the attorneys I talk with are relectant here or hesitant, I do not know. Under exchange act section 20(a), any person who directly or indirectly controls someone who has violated the law is liable to the same extent as the violator.

    The controlling person is verifiably liable, however, if he or she acted not in good faith or did induce the others (like MERS) to commit the violation.

    Disjoinder, scienter and “sufficiency go hand in hand here for class merit . . . when seeking certification!

    Similarly, securities act section 15 imposes controlling person liability upon a person who controls another person or third parties liable under section 11 or 12.

    So perhaps it “prep walk” time & possible grand jury consideration…third parties perpetrate one or more fraudulent acts relies on the FDCPA and section various sections therein under 807(9) that cause false statements to be made during the course of the loan as opposed to the initial loan application.  

    The matter holds that claims made and seeking restitution upon any loss shall be appropriate if the losses “would have occurred upon the reliance on any and all false reports.”  United states v. Diamond, 969 f.2d 961, 967 (10th cir.1992);  see also united states v. Meksian, 170 f.3d 1260, 1263 (9th cir.1999) (“[t]he main inquiry for causation in restitution cases becomes whether there was an intervening cause and, if so, whether this intervening cause was directly related to the offense conduct.”);  united states v. Wilson, 980 f.2d 259, 262 (4th cir.1992) ( “[i]n the event a bank loan or subsequent modification of terms under a forbearance agreement is legitimately offered by one who subsequently submits statements that are required in connection with the loan or offer to modify existing terms and conditions and that statement is false ․, the shareholders and or borrowers loss “in a wrongful foreclosure” is the loss that can be attributed to the false statement.”(Under [sentencing guidelines]).  

    In each of the cases we see, false statements were made. Look, a controlling person claims are predicated on a primary violation of securities law; (401 d registration included) where there is no underlying primary security claim, secondary claims must be dismissed. (Garfield …please comment here)

    [Note- false statements did not actually cause loss courts held restitution to “parties” is inappropriate “if” fraud had been unrelated to the loss. See Meksian, 170 f.3d at 1263 (holding “contaminated nature of the loan property” to have caused loss, not defendant's false statements); Diamond, 969 f.2d at 966-67 (noting that where loan was initially valid, but subsequent false statements were made, false statements did not actually cause loss); see also Wilson, 980 f.2d at 262 (remanding for reconsideration of amount of loss directly caused by fraud)].

    Controlling person status is a factual question, and a director of a corporation is not automatically liable as a controlling person. There must be some showing of actual participation in the company’s operation or some influence before courts will impose the consequences of control.

    What i know is this….the courts are split on the necessary level of participation or influence to trigger control person liability. My understanding for standing is some circuits have adopted the so-called “culpable participant” test, requiring some evidence that the alleged control person actually participated in the transaction in question.

    Consider where under this test, liability may be established without regard to whether the controlling person was directly or indirectly involved in the fraud and may be premised on inaction, but only if it is apparent that the inaction intentionally furthered the fraud or prevented its discovery.

    In conclusion, we advise counsel to consider whereupon some courts have rejected the culpable participation requirement and have, instead, required the plaintiff to show that the defendant:

    (1) Exercised general control over the operations of the company principally liable; and

    (2) Possessed the power or ability to control the specific transaction or activity on which the primary violation was predicated, even if that power was not exercised.

    Ref.: Federal securities law reporter securities act section 15 at ¶4795 exchange act section 20(a) at ¶26,311 cch explanations (e.g., ¶4796 (ip access user) and ¶26,315 securities regulation – loss, Seligman & Parades (e.g., chapter 11.d.1 corporate finance and the securities laws – McLaughlin & Johnson (e.g., chapter 5.01[d] (*) the regulation of corporate disclosure – brown (e.g., §10.05 –

    special acknowledgement to Jim Hamilton’s world of securities regulation /Insights Amy Goodman (e.g., “company liability after the act Sarbanes-Oxley” (October 2004)

  11. To : Jose Fighter…
    Yes, you are correct ! I have been thru (4) of these so-called “trained” Attorneys in the DC area only to have them take my money and do nothing. But now, I see one making some big progress unlike the others. This guy, Greg Bryl in DC has on his website his some recent wins in Va. I see he stopped one in Manassas Va. and the pre-tender lender cannot ever foreclose. Now that is impressive to me. So all the rest seem worthless except this guy. I am going to try him, will report back.

  12. Once again the biggest trouble we have is not the good and great lawyers that get it and are spreading themselves too thin all over the country, but that fact that the join forces with a whole bunch of incompetent attorneys that may be dying off slowly professionally for that very reason and they see the foreclosure litigation and a ticket to an easy way out of their own misery. But by not educating themselves, lacking the appropriate court room finesse and lack of initiative and good set of COJONES, they are hurting the people they were hired to serve and defend.

    They see the fight against the pretender lenders as an uphill battle and are easily intimidated, they fail every step of the way, they use tactics that go against everything being taught in this blog, they play on the defensive, which means you have already lost, instead of going after the crooks and force them to prove their worth in court.

    Maryland, DC and Virgina are lacking lawyers with TESTICLES.

    I am sorry for expressing it this way, but we have a great opportunity to do great here and these loser law firms disappoint everyone.

  13. I love this website.

  14. Monday 23 August 2010

    This really p!isses me off. I posted this information yesterday on the Devil in Details thread. The post was held for moderation, and then never appeared. I even posted to the moderator asking for an explanation.

    Max Gardner has an article on the Alphabet of a PSA, also worth reading. I gave that link, as well, but was not posted. Another was to mention a http:// site that goes by the name “homeequitytheft dot blogspot dot com.” Lots of good info there.

    The lead part of my post was to bringing attention to an excellent one by avirani0203 under the thread title, “Mass Extinction Of Pools Becomes Clearer,” found on this site.

    My intent was to show areas to pursue for discovery and why, for that was mentioned as an issue by a few.

    Not to worry, Mr Garfield, no one thinks you “invented” this field of law, but you do provide a valued service.

  15. I wonder if the Sherman Anti Trust could be explored
    for price fixing.

  16. Evade and avoid within the shell game. The cover up continues. Thank you Phil Graham, Bill Clinton, Bush, and Greenspan. Not to mentioned the biggest coward in the bunch who will not stand up for the US tax payer nor the home owner – His name is Obama how is owned by the Wall street banksters.

    THIS MUST STOP and restoration must be in placed for all who were scammed into the purchase of a home between 2002 and 2007. Remember there was never true supply and demand. It was all fraudulent control supported by the Republic ands and Democrats. Not just one party nor one person.

  17. Foreclosure Fraud,

    Thank you for your attachment. Very important. The dissolving trusts have set up what I call “dump” trusts – meaning the remnants of the stated Trust (in foreclosure) have now been sold to a non-REMIC trust that fraudulently attaches itself to the original trust – which was also likely fraudulent.

    Question that remains and is not answered here is – “Why are the courts buying this fraud?

  18. Hi Max,
    Can you explain the role MERS plays in the scenario you described? WIll AN ELECTRONICALLY REGISTERED MORTGAGE be in the list of disclosures you spoke of and how much weight does it carry in a Judge’s dicision?

  19. THANK YOU MAX GARDNER –

    These are very good reasons for wanting a PSA. May I add that you should also want the prospectus – which describes how the certificates to trust are sold to the security underwriters (method of distribution). You may also find explanations of “trigger events” that cause intervention with the Trust – thus, negating off-balance sheet status and, according to FASB new rules – consolidation of the conduit onto corporate balance sheet.

    A major problem is that repurchase information is not available – but if loans meet any of the criteria for repurchase – as Max points out – and there are many – then your loan HAD to be repurchased – although the originator may have failed to do so (which was often overlooked). This information – as to repurchase – must be provided by the current creditor according the TILA May 2009 Amendment which mandates identification of the current creditor.

    Another concern I have is the “Mortgage Loan Purchase Agreement” (MLPA) The MLPA ALSO is also a Repurchase agreement. Thus, the agreement serves in two capacities – and specifies, in detail, which loans MUST be repurchased. This is what investors, Fannie/Freddie, and the Federal Reserve are currently looking at. It is very likely that violations of MPLA prevented from sale to the Depositor because of so many “repurchase” stipulations – maybe this is why the Trusts were really nothing more than empty “shells” as the loan purchases were in violations of the Mortgage Loan Purchase/Repurchase Agreement.

    A concern I have had is that courts (and a NJ court decision implies this) are viewing the MPLA as the “bulk” sale of loans to the Depositor. Thus, each individual loan did not have to be individually sold. If the Mortgage Schedule is attached to the MPLA – then the courts would conclude that the loan was sold to the Depositor – and the receivable (rights) only had to be assigned to the Trustee of the Trust. However, as discussed, the Repurchase portion of the MPLA is massive – and defies legitimate purchase by the Depositor who “deposits” loans into the trust.

    Conclusion, if your loan was not a repurchase (and no one tell you whether or not it was) – then the loan, in all likelihood, SHOULD HAVE BEEN REPURCHASED – since it, most likely, violated requirements for trust inclusion. Thus, making the sale to the Depositor (and assignment to Trust), invalid.

    We are letting the investors, Fannie/Freddie, and now maybe the Federal Reserve, beat us to the punchbowl.

    Thanks again.

  20. so you mean this?Assignment of the Mortgage Loans; Repurchase At the time of issuance of the certificates, the depositor will cause the mortgage loans, together with all principal and interest due with respect to such mortgage loans after the cut-off date to be sold to the trust. The mortgage loans in each of the mortgage loan groups will be identified in a schedule appearing as an exhibit to the pooling and servicing agreement with each mortgage loan group separately identified. Such schedule will include information as to the principal balance of each mortgage loan as of the cut-offdate, as well as information including, among other things, the mortgage rate,the borrower’s monthly payment and the maturity date of each mortgage note. In addition, the depositor will deposit with Wells Fargo Bank Minnesota, National Association, as custodian and agent for the trustee, the following documents with respect to each mortgage loan: (a) except with respect to a MOM loan, the original mortgage note, endorsed without recourse in the following form: “Pay to the order of JPMorgan Chase Bank, as S-40——————————————————————————–
    trustee for certificateholders of Bear Stearns Asset Backed Securities, Inc., Asset-Backed Certificates, Series 2003-2 without recourse,” with all intervening endorsements, to the extent available, showing a complete chain of endorsement from the originator to the seller or, if the original mortgage note is unavailable to the depositor, a photocopy thereof, if available, together with a lost note affidavit; (b) the original recorded mortgage or a photocopy thereof, and if the related mortgage loan is a MOM loan, noting the applicable mortgage identification number for that mortgage loan; (c) except with respect to a mortgage loan that is registered on the MERS(R) System, a duly executed assignment of the mortgage to “JPMorgan Chase Bank, as trustee for certificateholders of Bear Stearns Asset Backed Securities, Inc., Asset-Backed Certificates, Series 2003-2, without recourse;” in recordable form, as described in the pooling and servicing agreement; (d) originals or duplicates of all interim recorded assignments of such mortgage, if any and if available to the depositor; (e) the original or duplicate original lender’s title policy or, in the event such original title policy has not been received from the insurer, such original or duplicate original lender’s title policy shall be delivered within one year of the closing date or, in the event such original lender’s title policy is unavailable, a photocopy of such title policy or, in lieu thereof, a current lien search on the related property; and (f) the original or a copy of all available assumption, modification or substitution agreements, if any. In general, assignments of the mortgage loans provided to the custodian on behalf of the trustee will not be recorded in the appropriate public office for real property records, based upon an opinion of counsel to the effect that such recording is not required to protect the trustee’s interests in the mortgage loan against the claim of any subsequent transferee or any successor to or creditor of the depositor or the seller, or as to which the rating agencies advise that the omission to record therein will not affect their ratings of the offered certificates. In connection with the assignment of any mortgage loan that is registered on the MERS(R) System, the depositor will cause the MERS(R) System to indicate that those mortgage loans have been assigned by EMC to the depositor and by the depositor to the trustee by including (or deleting, in the case of repurchased mortgage loans) in the computer files (a) the code in the field which identifies the trustee and (b) the code in the field “Pool Field” which identifies the series of certificates issued. Neither the depositor nor the master servicer will alter these codes (except in the case of a repurchased mortgage loan). A “MOM loan” is any mortgage loan as to which, at origination, Mortgage Electronic Registration Systems, Inc. acts as mortgagee, solely as nominee for the originator of that mortgage loan and its successors and assigns. S-41——————————————————————————–
    The custodian on behalf of the trustee will perform a limited review of the mortgage loan documents on or prior to the closing date or in the case of any document permitted to be delivered after the closing date, promptly after the custodian’s receipt of such documents and will hold such documents in trust for the benefit of the holders of the certificates. In addition, the seller will make representations and warranties in the pooling and servicing agreement as of the cut-off date in respect of the mortgage loans. The depositor will file the pooling and servicing agreement containing such representations and warranties with the Securities and Exchange Commission in a report on Form 8-K following the closing date. After the closing date, if any document is found to be missing or defective in any material respect, or if a representation or warranty with respect to any mortgage loan is breached and such breach materially and adversely affects the interests of the holders of the certificates in such mortgage loan, the custodian, on behalf of the trustee, is required to notify the seller in writing. If the seller cannot or does not cure such omission,defect or breach within 90 days of its receipt of notice from the custodian, theseller is required to repurchase the related mortgage loan from the trust fund at a price equal to 100% of the stated principal balance thereof as of the date of repurchase plus accrued and unpaid interest thereon at the mortgage rate to the first day of the month following the month of repurchase. In addition, if the obligation to repurchase the related mortgage loan results from a breach of the seller’s representations regarding predatory lending, the seller will be obligated to pay any resulting costs and damages incurred by the trust. Rather than repurchase the mortgage loan as provided above, the seller may remove such mortgage loan from the trust fund and substitute in its place another mortgage loan of like characteristics; however, such substitution is only permitted within two years after the closing date. With respect to any repurchase or substitution of a mortgage loan that is not in default or as to which a default is not imminent, the trustee must have received a satisfactory opinion of counsel that such repurchase or substitution will not cause the trust fund to lose the status of its REMIC.
    OK if that is what is supposed tohave happened then how is this not securities fraud and why I’m I fighting to keep my home??/

    In discovery they produced a lost note affidavit signed by the “VP” which she was not !! I have a payment coupon from her welcoming me as a customer dated 8 days after the date on the lost note that says she is a customer service manager. The successor trustee and the servicer produced 2 allonges that are undated and even one is not even signed. Of course the allonges were not attached to the note because I have the note A endorsed paid in full bearer note.I also have a sworn affidavit from the servicer who was the owner at one time and the depositer into the asset backed securities where she states that they did sell the note to JPM although a written assignment NEVER occurred. HMMMM looks like SECURITIES fraud to me.

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