SUBSTITUTION OF TRUSTEE: ANOTHER ACHILLES HEEL OF FRAUDULENT FORECLOSURES

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EDITOR’S NOTE: As pointed out by Paula, just like the credit bid at the so-called auction, the substitution of trustee is fraught with fraud. You have to ask — why is there a substitution of trustee in every case involving a securitized loan? I think the answer is that the original trustee won’t have any part of this process which could produce liability disproportionate to any reward.

The document itself, if fabricated, forged, notarized improperly, unrecorded, or recorded improperly, with the wrong date etc., may invalidate the notice of default, notice of sale, and at least taint all the other documents. And then there is the big question: exactly what are the duties of the trustee (the original) and the trustee (the substituted) and the trustee (of the pool)? Each one purports to supersede all others. And what point is the Trustee on the Deed of Trust, whether original or substituted, liable for subsequent misdeeds that amount to fraud?

For example, if the original trustee has knowledge (which all of them do now) that the substitution is invalid then the original trustee is still the trustee on the deed of trust. Why won’t they initiate the foreclosure process and fix the problem? Answer: Because they know they are dealing with fraudulent document, instructions and representations. The same rules probably apply to the substituted trustee. This area is ripe for title litigation and actions for damages for slander of title etc.

SUBMITTED BY PAULA NACHMAN

I haven’t seen this issue addressed on your blog. I think it might be important as it appears to be a widespread practice in the preparation of Appointments of Substitute Trustees by law firms and “foreclosure mills” including Samuel White and Shapiro & Burson in Virginia.
It concerns the Appointment of Substitute Trustee in my case.  This is what took place.
I have a mortgage with Bank A which was properly recorded at the county courthouse in the land records. Bank B buys out Bank A (in 2008) and was collecting mortgage payments until I ran into trouble.
Bank B never recorded an assignment of the mortgage note or deed of trust.
Bank B, in their attempt to foreclose, appoints Shapiro & Burson as substitute trustee.
S & B actually prepared the AST document, sent it off to Bank B to sign and then recorded the AST in the land records.
And here is where it gets hinky….the instrument number and deed book page references are from the original deed of trust recorded in the name of Bank A – the originating bank. Bank B simply took the references from the correct deed in the name of Bank A and “assumed” them. I assume that this is their technique to deal with the non-existing assignment – they just pretend that they are Bank A and ignore the need for an assignment.
And this is not just a “one off” event. Shapiro & Burson have done this in several other foreclosure cases in my county and in other counties. And they are not the only ones doing this. Samuel White is also using the “cut & paste” method.  This is a widespread pattern that is not readily obvious on the face of the ASTs. You have to go back to the cited deed book page and instrument references to find it.  So the foreclosure mills are submitting notarized documents for recordation in the land records that contain information that is incorrect at least and fraudulent at most.
Does anyone have a take on this? Does this rise to the level of fraud on the court? I live in Virginia.
Thanks!

Paula L. Nachman

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76 Responses

  1. It is
    I have been waiting 62 months to make some sense of modifications , stopping foreclosures, banks not foreclosing…..I think it was about just adding up a bill so big to the home owner that they would just have to go bankrupt.
    If they could not settle a mod, could not get granted a fraud, all the banksters did was just keep adding up the bill.
    They could collect on default insurance, collect on what was left over at auction…the homeowner had little hope that was not false hope of ever getting afloat. No promises from the lender
    What is happening NOW in 2014 what is the next twist
    Looks like the sheriff is doing the sales in Portland Metro that were going to be done by recon trust.
    The servicers are making MERS and the trustee of assets the plantiff as well as the home owner.
    The collector of all collectors

  2. Substitution of Trustee on;y substitutes a Trustee and does not assign any beneficial interest. So your question is somewhat confusing unless all beneficial interest was transferred to another entity through an assignment of deed of trust and the notes. Any question:(818)340-7600.
    Satish

  3. Hello, I live in California. We are into our 3rd defective foreclosure. My question is the original lender substituted out assigning all beneficial interest to another lender. The original lender who no longer has a beneficial interest in the property is trying to appear in court to oppose our motion for a stay and injunction pending our civil case and appeal. Do you know if the origianl lender who no longer has an interest can file motions and appear in court regarding the property when they have no interest? Is there a law or CCP I can refer to that says no they cannot once they no longer have a beneficial interest?
    Sandy

  4. VIRGINIA PROPERTY-
    Hello, Satish I was making payment to servicer Aurora) lost my property back on 10/2008. On 12/5/2008 lenders attorney ( most likely a debt collector attorney) Appoint of Sub Trustee does not mention the originator, it states MERS is the owner and beneficiary of the Note and authorized attorney to be sub trustee.
    documents were prepared in Virginia, notary public is in Indiana. Indiana notary does exist. signor was vice president of MERS.

    Hired an attorney on 6/2009, he did absolutely nothing to the case they took my house right from under me while I was paying fees to my former attorney. Worst of all, he was not license. I filed a complaint on 2/2010 at the D.C. bar association, former attorney is permantely disbarred. I cannot afford a competent attorney. Property was sold to another homeowner 6/2010

  5. Hello everyone,
    I have researched over 200 cases in california using lexis and I found that almost all challenges to SOT were unsuccessful. It seems like the Claifornia Courts one way or the other favor banks on this issue. Secondly, the pleadings in most cases have been drafted poorly or without much research. Yes only a lender or a beneficiary with interest in the loan may appoint a substitute trustee, As someone said the references in the SOT’s use the original trustee info in the substitution process. They refer to the originally recorded instruments that are no longer applicable or valid for the purpose of appointment of the substitute trustee. So the challenge to who appointed them as trustee will be crucial. Many times the SOT taks place befor the assignment of mortgage (if at all valid), and they pursue foreclosure action on behalf of the trust. Only a trustee of the trust or the lender can appoint a trustee. So the challenge here is did your deed of trust indicate them as trustee in the first place, NO; then who appointed them? If not the trustee or the lender they cannot be substituted. Need more info: Call me:Satish Shetty (818)340-7600

  6. Forensic Documents Research/Loan Examiner 760) 244-6248
    Pamela Zander says; never thought I would become a statistic for foreclosure. I have my suit in Federal Court. This is tough, as I know enough to get into court and not enough to navigate through the motions.
    Anyone, that has a loan in CA should know MERS was suspended by CA Secretary of State, 2002-2010. Furthermore, one should pay attention to whom the “trustee” is. Trustee on Deed of Trust, may have been named without their knowledge, or permission, which is “identity theft” important in their rolek as trustee is an entity that holds “bare or legal” title.
    When drafting a deed of trust; to secure real property in California, in order to give the lender full panoply of rights upon foreclosure, note that, this power was not given to the assignees of the mortgagee, and the agent or attorney of the mortgagee was not specifically named.
    It is a felony to create a false Deed of Trust: Title 18 > Part I > Chapter 47 > Section 1028 Title 18 of the US Code as currently published by the US Government, reflects the laws passed by Congress as of Jan. 7, 2011, AND IS THE COMPANION TO California’s law prohibiting forging deeds; a felony, punishable by 16 months or two or three years in the California state prison and a maximum $10,000 fine. Each forged deed that one attempts to file, register or record, counts as a separate violation of this section. This means that for each violation, you face an additional three-year sentence and an additional $10,000 fine.7

    Every State has the companion statute for creating false instruments. Make sure to check out the valid registration of MERS (Secretary of State) in your state and make sure there is a legal contract from the lender to use the original trustee. You may have a fraudulent DOT.

  7. Zelma! Call me at 804-745-0250
    Paula N.

  8. VIRGINIA PROPERTY- foreclosed 12/5/2008 was making payments to Aurora Loan services. DOT has MERS as a beneficiary and 2 ng page of DOT they are nominee. TRUSTEE CB SERV CORP. I keyed in CB Serv Corp and their address it came under Wells Fargo and Central Fideliity. CB does not exist. D & G are Debt collector attorney states they are the lenders and servicer’s attorney. Deed of Appointment of Sub Trustee was prepared by D & G debt collector attorneys. It states MERS hold the original note and DOT. MERS appoints D & G attorney. MERS vice president delaware seal NOTARY PUBLIC is located in Indiana. (David A. Davis) I contacted State of Indiana their is such person (David A. Davis) State of Indiana stated via email they sent me that notary can only notarize within the boundaries. Why would MERS Vice President (Stephen Broviak) go to indiana for a notary? Same Notary Public notarizes Aurora Loan Services(they are located in Colorado and Illinois) Asst. vice President Chris Zimmerman.

    TRUSTEE’S DEED- prepared by D & G says Draper & Goldberg (D & G for short) is the Substitute Trustee, and as Grantors and Aurora Loan Services grantor and bidder Federal National Mortgage Association. It also states in the lower left the existence of title insurance is unknown to the preparer.

    I hired an attorney months after foreclosed. Unfortunately, the attorney did absolutely nothing to my case. Worse of all, he was n ot license to practice in Virginia. I filed bar association former attorney is currently disbarred and under federal investigation.. New homeowner bought my home 5/2010 while I was paying attorney fees. My husband is retired Navy, we are homeless currently living with relatives and we spend lots of money. Can’t find a competent lawyer to go after them for deceptive acts and we cannot afford one. HELP!! HELP!! I DON’T KNOW WHAT TO DO. We could use some advice from a competent lawyer.

  9. To answer Neils question—-because quite often the original trustee is NO longer in business!!

    From Neil:
    For example, if the original trustee has knowledge (which all of them do now) that the substitution is invalid then the original trustee is still the trustee on the deed of trust……

  10. CC Hall, I have Walker. Any info you want to share with me would be well received.

  11. John Gault,

    You just made your point and mine regarding the Trustee being a Neutral Party in a foreclosure action…..they are acting as an Agent of only ONE party, having no beneficial interest to the other.

    How can a N.A. (National Assoiation Bank, RECONTRUST) Trustee for the bank e.g. BOA make claim to Neutrality using Recontrust, as a wholly owned entity or subsidairy. Recon states, they are a “Bill Collector”. Where is the benefit of any Trustee relationship between the the true lender / creditor and borrower?

  12. Hey, you know what? When you get a notice of default, it states that you should contact the (alleged) trustee with any questions / gripes, not the bankster-servicer. This is because those rat-b’s KNOW the trustee is supposed to be a fair and just referee and that you’re supposed to have something to say about whadup. You won’t get anything out of the trustee, of course, you just get blown off – it’s just their CYA.

  13. @GH The note and dot are inseparable, if you believe as many courts have ruled, that the dot follows the note. However, if by intent, the dot is separated from the note by bifurcation, with A having the beneficial interest in the note and B having the alleged interest in the dot, then I guess the note is unsecured and the dot should be unenforceable because a dot is merely a collateral document for a promissory note.
    It’s been many years since I studied real estate law, but as I recall, isn’t a mortgage a single document which contains both the promise to pay and the collateral agreement? Mortgages used to require judicial foreclosure, if they don’t now. Lenders didn’t want to be bothered with judicial foreclosure, so the deed of trust was invented that they could avoid judicial foreclosure: a third party, the trustee, was put in a loan ‘deal’ to accomodate nonjudicial foreclosure. Lenders were given an inch and gee, big surprise, they have taken the proverbial mile, an ugly mile which is devoid of law. Every, well, at least most, foreclosures today are a mockery of the deed of trust. Even if you throw out the MERS and securitization factors, it’s still a crock. The trustee must act as a neutral figure and perform his duties properly, which prohibits him from acting as the agent of the beneficiary. When the trustee is not given a copy, say, of a properly endorsed note and a cognizable chain of the deed of trust, he is most assuredly not performing under his duties to the deed of trust. It’s like a commentor here said a couple months ago, why don’t we all just foreclose on each others homes? Under the current schematic, which is no more than a
    “because I said so”, we ought to be able to. Oh, we’re not MERS’ members. Dang. We might be forced to actually document something.
    I am fairly confident that as a matter of law, the trustee is to be provided the aforementioned documents and I am equally confident this is not happening. When an alleged trustee files a notice of default, meet his stinking tail in state court (you’ll have to file suit, like for a declaratory judgment ) and demand the documents the trustee has received allegiing default. What you’re going to get is a copy of a sheet of paper with a loan balance and missed payments and late charges prepared by God knows who. (FYI, these “God knows who’s”-foreclosure mills are given carte blanche access to servicers’ data bases, which includes the private info like social security numbers on not only your loan, but all those in the database.)
    Maybe the trustee got a copy of the recorded deed of trust, uncertified, of course, which any yeahhoo can get from the court house and evidences nothing. IF they have a copy of the note at all (seriously doubt it), it will be a copy of the one from your original closing file, generally retained by the servicer. There will not be one endorsement on it most likely, not one shred of evidence of Joe-Blow-Bankster’s interest in your home.

  14. john gault

    Loans were already likely in default — before any modification consideration. In fact, refinance was likely a modification of an already false default debt. The only reason servicers request that you be in default for a certain amount of months (as if you were not already in false default) is so that they can remove the default debt from the already bogus default debt “securitization”.

    What you have with subprime “loans” is nothing more than modifications of default debt — and, any further modification of that default debt — is just another sale of collection rights — nothing more.
    Subprime loans were just a transfer of collection rights on default debt. Rather, a transfer of “servicing rights” (collection rights) on default debt.

    Insurance fraud?? We have not even started.

  15. Frustrated Fighter, This is the good ole USofA. Anybody can sue anyone for anything. Sue them and maybe you will get your house back or some money for damages. Burmese8@yahoo.com

  16. There is a school of thought which believes that the note and deed of trust are bifurcated by (at least) MERS’ involvement. It is the subject of multi-district class action being heard in Arizona and I believe involves properties in CA, NV and AZ. If the note and dot are bifurcated, the note is unsecured and the deed of trust, a worthless piece of paper, is unenforceable.

  17. @john gault

    Thank you for your response. We’ve gotten quite far (here in CA) arguing that MERS cannot legally transfer rights to a Note that it’s not a party to (primarily relying on the Rickie Walker case). But I’ve never seen MERS make the admission themselves. If you can help me me find such, I’d be very grateful. Perhaps some of our research could be helpful to you. Are you in CA?

  18. Anonymous – Loans don’t have to be in default for modification. That’s fiction by the servicers so they can get late fees, etc. before ultimately taking the property. They continue the payment stream to the noteowners but keep the late fees, etc. Yes, people are being told to ruin their credit so servicers can get these late fees, etc., and I am not kidding. And by the way, according to a case I have on file, ALS for instance, records its loan modification telephone conversations. I suspect others do, too. Think discovery. I know – good luck on that, but it has to be done when people have been jacked with repeatedly by these guys.

  19. this whole securitization system was a pyramid scheme. it had no chance of perpertual survival.

    I believe that once this issue is clarified, the criminality of the aftermath of the demise of this corrupt system will not be realized.

    it was double headed pyramid scheme. an upside down pyramid for the fraudulent embezzlement of the funds invested by sophisticated investors that were either negligent or were given bad information with criminal intent to defraud and the up right pyramid of all of us the borrowers who were lied to, and to who none of the relevant disclosures have never been provided until now.

    how, Once you put several fruits in a blender, and turn on the darn machine, you can separate the fruits from each other and make them whole?

    these tjieves are using documents that they destroyed by estructuring the notes by putting them in gigantic blender and then pour the content down the drain. Now they come with legal looking papers, they rail road you the moneyless and bankrupt borrower, who may end up employing half decent predatory lawyer, who still after two or three years of doing foreclosure delay has no real defense strategy and no winning record, limited staff and resources.

    yes it is an uphill battle, however, most people have no idea of what to do.

    thanks to bogs like this and to all the people that contribute, the word has gotten out.

    write to CBS and thank them cor their, although belated expose last sunday on foreclosure fraud, they must be incentivated to pursue the matter eVen further

  20. AGENCY, Agency.

    If the alleged trustees are acting, and acted on behalf and for the benefit of a single party the banksters”, they are their undisclosed agents , there are ethical and legal issues at hand.

    this area must be exploited by all the smart foreclosure defense lawyers outthere

    this has been one of the most inspiring post in some time

  21. if any one signs a settlement agreement with one of these fraudsters and agrees to a deed in lieu of foreclosure, can that settlement agreemnt be undone if it can be proven that the other party acted without proper authirity and litarally stole your home?

  22. we must put all these clown trustees on notice and then we appoint our own trustee. If the loan was securitized, the original “lender”, cannot assign, substitute, transfer anything. Once they securitized the actual true creditor was and is not an actual party to the note and to the DOT. therefore, we come back to the realization that the note and DOT were abandoned, the payments and colecction efforts, foreclosures and evictions are criminal and illegal.

    The banksters are creating new servicers, sub servicers, hiring out of state notaries to “witness” signatures of people who have no idea of what is going on.

    But if you and I engage in this fraud, we go to jail. If it is the banksters, it is just a clerical issue. Like they did not have a meeting at,any time to discuss how to fabricate documentation after the fact.

    Now there is a deludge of Notes being brought forth with blank endorsements, be carefull, these endorsements are undated, unconfirmed, unsigned, and have no notary seal on them. in other words these criminals are taking the notes the originator .ever transfered as required by federal and NY law into the REMICS, and using these stolen documents to illegally justify a foreclosure.

    What are the AG’S doing negotiating with mafioso criminals.

    America is bleeding and these people are having all of us bend over, whether we agree or not.

  23. john gault

    Modifications are only done on default loans. This is why they require a default before even consideration of a modification. At this point, all you have is modification of collection rights on a default debt – not a mortgage..

  24. John Gault,

    Excellent post…..excellent! One statement you made threw me a bit of a curve, …..

    “Prior to the deed of trust, mortgages were the instruments used to secure a lender’s interest in a property”.

    I refer to Carpenter v. Longan , 83 US 271 Supreme Court 1873, basically the court said the Note and Mortgage are inseperable.

    Please comment on this…..”Johnny 5 needs Input”!

    Gary

  25. Confused,

    “Confused, on April 7, 2011 at 5:34 am said:
    zurenarrh- that is esxactly what the Trustee is doing in my case. as you know BofA admitted they never passed the note or deed on to the SMBS per the PSA. Fannie and BAC are playing dirty in nonjudicail states”.

    The Note and the Security (DOT) cannot be sepperated by law. There is case law on this.

  26. zurenarrh

    “In my case, BAC both “re-appointed” and substituted Recontrust as trustee even though Recontrust was already the trustee originally in the deed of trust…and in discovery, I was told by BoA that Recontrust currently “is in possession of” the original Note but that BAC is the Note Holder”

    I guess I’m a bit confused with this since it was my understanding that the Trustee in a deed of trust must be a Neutral party. Recon is a wholly owned
    subsidiary of BOA.

  27. People on this website occasionally post a link to a document at scribd. Scribd has some really good docs, but can be frustrating. Never hit the back button at scribd – never! And always let a doc fully load before trying to scroll or anything. Takes longer than we like, but you have to do wait. Also, once a doc is fully loaded, hit download (save) and then read. It’s often a pain as well as a challenge to read it on scribd. It will likely d/l as a pdf file. Just open with Adobe Reader – will load faster to read.

  28. Anonymous – yeah, it makes sense. Servicer gets say 200k tax free from sale. How much more is 200k when it’s tax free? Remember they got the home with a stinking credit bid.
    If they modify a loan that went thru FNMA for securIitization, they have to buy it for modification.i Then they have to find another outlet to dump it because FNMA will not take back a modified loan. But how can they even do this? To take a loan from pool requires a replacement, I think, and then they get no new fees for replacement.. Oh, no!
    But when they get the 200k for the sale of the property they stole, first of all, who would know, and so they have to continue the payment stream on maybe that 200k.? Big whoop to them I think. I’ll take the free cash and use it to generate more income to offset my payment stream. Wouldn’t you?

  29. @C Hall, I hope Z posts the MERS case regarding the lack of MERS interest in notes. I have some but can’t find them.
    Each time an assignment was executed and recorded by a servicer’s MERS’ straw officer / servicer employee which purported to assign the note along with the deed of trust, a false instrument was submitted for recordation, which is a violation of any state’s recording statutes. Check your state’s. Any time any such bogus assignment was submitted to a court, a false document was submitted. Check out rule 9011 if you are in Fed jurisdiction or look for your state’s correlating statute.
    In a Michigan case – DC E.D. So. Div. 06-13055, on February 1, 2007,MERS stated that a promissory note is not governed by Article 3 or 4 of the UCC because it is not a negotiable instrument……

    I’ll look for those cases wherein MERS disavows any interest in the notes.

  30. A deed of trust is a three party instrument by definition – the trustor, beneficiary, (by any other names), and the trustee. It is the trustee who
    may hold 1) legal (or ‘bare naked’), title or 2) equitable title to the property which is the subject of the deed of trust. Some states are ‘title theory’ states and hold that the trustee holds legal title to the property for the benefit of the beneficiary with the borrower retaining equitable title.

    Other states, known as ‘lien theory’ states, hold that the borrower retains legal title with the trustee holding an interest for the benefit of the beneficiary.

    There are two forms of title: legal and equitable.

    The trustee’s interest is limited to his duty to the terms of the deed of trust. There are no other rights conferred on the trustee. There is no provision in a deed of trust which allows the trustee to abrogate his duties, but that is what is going on just now. An agent may not foreclose.

    The beneficiary holds nothing in regard to title. So exactly to WHAT it is that MERS alleges it holds title? (Those are the words MERS uses) The rights
    of the beneficiary created by the deed of trust? No, that can’t be it. MERS has no rights in regard to the debt. No (independant) right is created without
    interest in the note. For instance, an assignment of the deed of trust without a transfer of the note is a legal nullity. MERS attempts to create a form of
    title which does not exist as a matter of law. The debt-and-its-collateral are the province of the note owner.
    Again – a deed of trust is a collateral document and has NO life without the note. Without the note, it is not worth the paper it’s written on. Period.

    I don’t know that a nominee of the beneficiary would be prohibited by the legislative intent in the formulation of the deed of trust as a collateral
    instrument, although I believe it would be. In any event, confusion as to the identity of the beneficiary in a deed of trust has been held to invalidate the
    instrument. The words ‘beneficiary’ and ‘lender’ used to be synonyms before MERS came along.

    I don’t believe this issue regarding ‘nominee’ has been fully decided, or at least there is no national consensus. However, at least two cases have
    addressed the matter of nominee (though not as to ‘confusion’): The Kessler court, and Rutland Superior Court in Vermont, 420-6-09, MERS v Johnston, etal. (The latter is the case where the judge stated essentially that MERS is bs and not legal- in case you missed it, it’s at scribd)

    It is the trustee and the trustee only who is statutorily empowered to garner the collateral in the event of default for the owner of the note. If a deed of trust (or a statute) alleges a beneficiary may foreclose (rather than the trustee), there is no such
    thing as a Deed of Trust. What there is is a mortgage, sans the judicial f/c mandates, with some bare contingencies, conditions precedent,of notice of default to the borrower. This is entirely inconsistant with the legislative
    intent in allowing a deed of trust as a collateral instrument. To find otherwise is to say that the legislators, when allowing the document to be
    used in the place of a mortgage, meant to deprive the borrower of all safeguards and all due process. If a beneficiary could foreclose, the trustee
    would not be a necessary party to a deed of trust, and NO Trust would have been created. A deed of trust is just that – a Trust ,and the trustee is essentially the referee. He is not the minion of the beneficiary/ noteowner. If a trustee were the minion of the beneficiary/ noteowner, he would be called an agent and there would be NO deed of trust. You can’t have a deed of trust without a trustee.

    This is the essence of how a deed of trust differs from a ‘mortgage’ (the doc used prior to the implementation of the deed of trust and still used in some states), and with the deed of trust and hence the ‘trustee’, we saw the advent
    of the non-judicial foreclosure. Prior to the deed of trust, mortgages were the instruments used to secure a lender’s interest in a property. They
    generally required judicial foreclosure and in some if not all states involved rights of redemption.

    Lenders found this ‘cumbersome’, so they lobbied the legislation for the deed of trust.

    Can a trustee act as an agent for the beneficiary? No, he can’t. He’s a trustee, not an agent.

    If the word or meaning of ‘agent’ had been intended, it would have been used. It’s been
    around a long time. But it wasn’t , because there must be a trustee for a trust, (not an agent). If
    there were NO trustee, there would be NO deed of ‘trust’. To understand a deed of trust, it might be helpful to think of a line a foot long. The trustor
    (borrower) is at one end and the beneficiary/lender is at the other. The trustee is in the middle. Where he ISN’T is at one end or the other with either of the other two parties.

    In addition to defining a deed of trust, the fact that ‘trustee’ was used gives creedence to the dual fiduciary of the deed of trust trustee.

    In fact, if a deed of trust trustee does not perform his obligations to the trust, including to the borrower, he is acting as an agent and not a trustee. Agents may not foreclose, only duly appointed trustees may.

    To whom does the trustee owe a fiduciary?

    The choice of words, i.e., ‘trustee’ over ‘agent’ in the deed of trust (which, again, defines a deed of trust as a three party instrument and creates the Trust) would make it clear it is dual, that is, a deed of trust trustee owes a fiduciary to both the lender and the borrower.

    Case law is scant on the fiduciary of the trustee. One court, in Lewis v Jordan Investment, Inc., 725 A.2d 4955 (1999), recognized the trustee’s dual fiduciary:

    “A trustee of deeds has the fiduciary obligation to comply with the powers and duties of the trust instrument, as well as the applicable statute under the District of Columbia Code. Perry v. Virginia Mortgage & Inv. Co., 412 A.2d 1194, 1197 (D.C. 1980) (citations omitted). THIS COURT HAS LONG RECOGNIZED THAT TRUSTEES OWE FIDUCIARY DUTIES TO BOTH THE NOTEHOLDER AND THE BORROWER. S&G Inv., Inc. v. Home Fed. Sav. & Loan Ass’n, 164 U.S. App. D.C. 263, 270-71 n. 21, 505 F.2d 370, 377-78 n. 21 (1974)”

    Another circuit’s case says the trustee’s fiduciary is limited to the beneficiary, a proposition I find absurd for the reasons cited. While the legislators allowed the deed of trust, to accomodate the lenders’ complaints regarding the time and cost of judicial foreclosure, it is unimaginable that they intended the borrower to have no safeguards, no due process whatsoever.

    And in that regard, today’s trustees are in fact acting as the ‘agent’ of the beneficiary and not as true trustees. When, in short, a trustee acts at the
    instance of an alleged beneficiary with no real evidence that the alleged beneficiary has the right to command default / foreclosure, not only is that
    trustee breaching his fiduciary to the borrower, he is breaching his fiduciary to the true beneficiary by not ascertaining that he is acting at the behest of
    the proper party. A trustee cannot be said to be acting within or meeting his fiduciary when he is not demanding and being provided evidence of the
    instigator’s authority to foreclose.

    He is also violating the tenets of good faith and fair dealing, which is a covenant arising from the contract, i.e., the deed of trust. And even if a
    trustee’s fiduciary is limited to the lender, (again I say this is absurd) the borrower is an INTENDED beneficiary of the terms of the trust.

    Any party who wrongfully induces a trustee to violate his trust position is guilty of third party breach of fiduciary. And, again, it cannot be said that a trustee is performing his fiduciary – to anyone – when he institutes foreclose proceedings with no evidence of the instigator’s authority. And
    therein lies another story – what documentation provides evidence of that authority to the trustee and what is / has been actually given to the
    trustee? I suggest the equivalent of zero.

    If courts persist in denying homeowners relief from wrongful foreclosure, some thoughtful attorney is going to file suit based on breach of fiduciary
    and or third party breach of fiduciary, and that suit is going to be successful. I for one can hardly wait.

    s is lengthy, but it needs to be said.

  31. zurenarrh,
    You stated yesterday evening:
    … MERS admitted it could not transfer the Note, though and said that any language in the assignment that purported to assign the Note could not do so…
    Would you please share how, when, where you received this admission and/or provide the full text of the admission – it would be extremely helpful to my own case and certainly many others.
    Thank you!

  32. @Marie, I will be in foreclosure, once again, very soon. Interested in pursuing them afterwards.

    @Raja, will call you tomorrow – thanks.

  33. anon
    Pat
    Saxon

    Please call me 540-687-0004

  34. Annon. I have Ahmsi, DBAnk, Linda green and Twyanna Thomas in another Virginia county. Was wondering myself about post foreclosure suit against Ahmsi, DB, substitute trustee of DOT and others for damages arising from fraud as well as to set aside sale. Would be interested in speaking with you and others similarly situated although it appears you are still preforeclosure?

  35. @Paula,
    I am in Virginia also. Had Samuel White on my case, now the Bierman Geising Gang. Been fighting my foreclosure going on 36 months.

  36. @Gregory, enjoyed reading your posts. I went to Fairfax County land records and found where my deed of trust was assigned, recorded by Samuel White’s office, with the famous Linda Green signature on it.
    I am hoping to track foreclosures of AHMSI, look up the assignments in land records, find the ones that may have been forged then hand them over to a law firm to file a nice class action against the major foreclosure mill law firms that knowingly foreclosed when aware the docs were forged. Sure I won’t have any problem finding plaintiffs to join.

  37. Here’s a goodie for Florida (and probably the rest of the country.. I was looking around in the Florida corporate registry …and saw something really odd ( see http://www.sunbiz.org ) ,, My servicing entity from WF/Option One was originally “American Home Mortgage Servicing Inc” and it continues to be so … However the company went BK and Wylbur Ross’s “shadow” version took over servicing with a new company using the same name … I do not recall ever getting the required official notices….

    here’s a cut-and-paste of the answer from my inquiry to the Florida dept. of corporations … if there is anything actionable of usable here let me know… I REALLY want to QT …. THANKS ..

    Good Afternoon,

    We apologize for the delay in our reply.

    F93000002976 was a Maryland Corporation originally qualified in Florida on 06/28/1993 under the name PAINEWEBBER MORTGAGE FINANCE, INC. On 09/28/1993 the name was changed to COLUMBIA NATIONAL, INCORPORATED. On 07/21/2004 the name was changed to AMERICAN HOME MORTGAGE SERVICING, INC. On 04/21/2008 the name was changed to AHM SV, INC. On 09/25/2009 the corporate status in the State of Florida was revoked due to non-filing of the 2009 Annual Report.

    The corporation used the name AMERICAN HOME MORTGAGE SERVICING, INC. from 07/21/2004 to 04/21/2008.

    F07000006151 was a Delaware Corporation originally qualified in Florida on 12/17/2007 under the name AH MORTGAGE ACQUISITION CO., INC. On 06/04/2008 the name was changed to AMERICAN HOME MORTGAGE SERVICING, INC.

    F07000006151 did not start using the name AMERICAN HOME MORTGAGE SERVICING, INC. until approximately 2 months after F93000002976 filed the amendment changing their name to AHM SV, INC.

    When viewing the detail page online at http://www.sunziz.org just above the entity name you’ll find a link for “Name History”.

    Lee Yarbrough

    Internet Access Section

    Florida Department of State

    Division of Corporations

  38. Civil theft…. I’ll have to remember it was civil, oh so civil, as they appropriate my farm

  39. Gregory Bryl, Esq.

    It was a planned game by these thieves, who are and were in bed with the government., the participants, including servicers, trustees, and all other hidden thieves , are interlopers or imposters whose design is to commit civil theft and take title they have no right to claim, and to enforce the note which is evidence of an obligation that is not owed to them but rather to another. These toxic assets are in Maiden Lane I, II, III , LLC, where as per SEC filing it says the “Senior Lender is Fed Bank of New York” and their name is not there in the county Lands Record, Chain of transfer of title was not perfected, title has been clouded and a court can remove the cloud.
    If you see AIG filing from 2008 to 2011 the game is clear and these pretenders,are falsifying, misrepresenting, wasting the precious time of the court, and committing fraud upon the court and on the public as consumer . If you will see the assets in Maiden Lane with the CUSIP # and then compare these CUSIP # in their 10-D filing then the game is crystal clear. The problem is that most of the Defense attorneys do not have time to dig deeper and go in this “DEEP RABBIT HOLE”
    Maiden Lane III LLC (a Special Purpose Vehicle consolidated by the Federal Reserve Bank of New York) (the “LLC”) is a Delaware limited liability company that was formed on October 14, 2008 to acquire Asset-Backed Security Collateralized Debt Obligations (“ABS CDOs”) from certain third-party counterparties(Banks) of AIG Financial Products Corp. (“AIGFP”). In connection with the acquisitions, the third-party counter parties (Banks) agreed to terminate their related credit derivative contracts with AIGFP.http://www.federalreserve.gov/releases/h41/Current/, “SIGTARP Report 10-003 – Factors Affecting Efforts to Limit Payments
    At the end I will say as
    Fabricated documents to a Trust that no longer function and for which “TRUSTEE’S DUTIES” have been TERMINATED.How can a fabricated document are formalized to trust after dissolution of TRUST.f) Since Trust has been dissolved and Trustees are no more Trustee, have acted and are acting wrongly in regard to the issue at hand and now acting without any standing.This means that the “Trust” does NOT own the pool or the loans in the pool (This was admitted on each of Prospectus Supplement filed with SEC by these thieves).

  40. ANONYMOUS- good point, but I would add an addendum, as to marking the mortgage to current market value. IT IS THEREFORE BY ORDER OF THIS COURT, THAT AS THE BORROWERS’ SIGNATURES, GOOD CREDIT, AND FAITH WERE USED BY THE DEFENDANTS TO PLACE BORROWER’S MORTGAGE (in this case,$230,000.00) IN 20 “TRUSTS”, THEREFORE ALLOWING THE DEFENDANTS TO COLLECT FROM INVESTORS 20X THE FACE VALUE OF THE NOTE, THE DEFENDANTS ARE HEREBY ORDERED TO REMIT TO THE BORROWERS $4.6 MILLION DOLLARS (20 times $230k) WITHIN 3 BUSINESS DAYS. MANDATORY TREBLE DAMAGES DUE TO FRAUD ARISING FROM THESE TRANSACTIONS WILL BE USED TO PAY DOWN THE NATIONAL DEBT. How’s that sound?!

  41. ANONYMOUS
    Thanks for your remarks. It is my ongoing “MISSION ESSENTIAL”

  42. One thing I did not mention…..

    Bank B bought Bank A – I don’t think it can be understood as a merger. Bank A was on the brink of going under at the time.
    My loan was sold to Fannie Mae (their “loan lookup function on the Fannie Mae web site confirms this). Also, all of attempts (QWRs, FOIAs) to both Bank B and Fannie Mae have been summarily dismissed out of hand.

  43. NEIL! THANKS FOR THE POST!

  44. Raja – contact me at pn306015ATgmailDOTcom
    Am forwarding this article and comment thread to my pal/lawyer!

  45. It makes no sense to sell devalued and foreclosed property to new homeowners — rather than just modify the terms to current value and rates for current homeowner — except to the parties (current creditor/investor) that are profiting from a foreclosure.

  46. Raja:
    I would emphasize that the whole bubble scheme was designed to transfer wealth from the middle class to the few select. The solution seems to be to let people stay in their homes, not for free, but for paying the current FAIR MARKET VALUE on their homes.

    Marie,
    it is true that even before a sale, foreclosure defense in VA is an extremely uphill battle. Nonetheless, if the violations in your case are bad enough, even a conservative judge’s hands will be tied by the law. The magic words in VA to a judge are “it would be reversible error to hold otherwise…”

  47. Mr. Gardield- would you please start a Bank of America tab on the left side of your page so we can all communicate…they play dirty.

  48. zurenarrh- that is esxactly what the Trustee is doing in my case. as you know BofA admitted they never passed the note or deed on to the SMBS per the PSA. Fannie and BAC are playing dirty in nonjudicail states.

  49. Raja

    Need more out there like you. Thanks.

  50. In my case, BAC both “re-appointed” and substituted Recontrust as trustee even though Recontrust was already the trustee originally in the deed of trust…and in discovery, I was told by BoA that Recontrust currently “is in possession of” the original Note but that BAC is the Note Holder while Fannie Mae is the “owner” and “investor”…

    However, BAC’s authority to “re-appoint” Recontrust was supposedly derived from a MERS assignment of DOT/Note to BAC…MERS admitted it could not transfer the Note, though and said that any language in the assignment that purported to assign the Note could not do so…

  51. Raja: my email. Teyyah@yahoo.com.

    I’ve been assured by a virginia “foreclosure defense” attorney that there is no strategy in VA that will have any chance against this trumped up sale as Virginia is ultra conservative. Thanks for your thoughts

  52. simultaneous state and federal actions. if one falls they will hit the floor very hard.

  53. The only way to win is to fight and the more people see what charades were done and continue to be done the soon this country’s pains will be gone.

  54. Marie
    please give me your email so that I can contact you.

  55. A good Bankster is a Jailed Bankster.

  56. Raja,

    How can others in Virginia help you?

    I would love to go with you the next time you meet with Congress. Many here in Virginia are reading, learning and fighting to get the fraud exposed.

    Gregory you seem to be the only Virginia Attorney willing to stand up and speak out for to educate homeowners….. Thank You

    We have an uphill battle here in Virginia but if we join forces just maybe we can make some headway.

    Anybody interested in getting together to share their situations and see how we can help each other? pmbva@yahoo.com

    I

  57. These are very common in county records. Just go see the forgery file at the county. jail.

  58. Atty Bryl and Raja

    I’m also in Virginia and apparently was foreclosed on Mar 31. I was out of state and did not receive my mail timely.

    Question: if substitute trustee is not in good standing would that fact assist in setting sale aside? Appointment was also robo signed and was “engineered” by bierman and ward etc

    Would really appreciate any help

  59. Louise,

    Your concerns echo my own…

  60. Louise,

    Your concerns ehco my own…

  61. @raja – how do we reach you?
    I’m in VA and would like to discuss, compare
    notes.

  62. Why?????
    Quoting the movie “Independance Day” when the President asks why he was never advised of the Area 51 and presence of aliens…his aides response>>>
    “Two words Mr. President, plausible deniability”

  63. Gregory Bryl, Esq.,
    Last Friday I was in the US Congress, had meeting with them. initially they gave me 30 minutes but the meeting ended after 01 hour and 45 minutes.
    I presented a group of 5 congressmen with the power point presentation and answered their each and every question on this mess created by these thieves.
    The meeting ended with the congress wishing to see me again in a few weeks – end of April .
    They seemed quite interested in the issues and did say this – “NEXT TIME you come back, have actual solutions that can be implemented.” They told me that is OK with hearing the problems, but give them solutions that can provide to the Congress as well.
    The moment I stepped out from the Capital Hill building, The SEC called me – they want to hear the side of the story based ONLY on SEC violations. They do not care about the fraud committed anywhere else – they are quite single minded. This person will then send the case forward to a full investigation if I can convince him that there is something that needs to be looked at more closely.Currently, there is a bill being prepared for the floor of the House stating that all mortgages foreclosures will “show the note” from now on. I was able to show them that the bill is most likely useless since the foreclosure mills use such companies as DocX and LPS, with the help of Foreclosure mills attorneys already named in my previous post, to re-create lost notes, that these companies are doing this now, and that the bill is a nice idea but the slime balls get around it more easily than anyone knows.
    I am also as instructed is working with the County Supervisors to dig out the real facts from the County Lands Record. I almost spend a day in each county Lands Record (Loudoun, Fair Fax and the Prince William because these are near to my place.
    I have already filed a case against these thieves and the MERS for the ” Virginia Fraud Against Taxpayers Act”. The case is with the same judge who is handling my case since last couple of years.

  64. There are other issues in the trust argument. Is the trust still in existence? Was the loan entered into the Trust in a timely manner and with the correct documents. Remember, this entire system was rigged from before you even signed your note right up until and into the so-called securitized Trust. Some of these loans were non-performing only one month after the documents were signed. Why is a trust accepting notes that are not performing? Burmese8@yahoo.com

  65. Help: Have you considered BK court? Unfortunately, the foreclosure clock is now ticking since the NOD/NOTS has been filed. Were I in your shoes, I’d seek competent legal help right away. An “attorney who gets it” here on Neil’s site or a Max Gardner BK Bootcamp type of attorney is where I would start my search.

  66. a good example of your post Neil;

    Orginal Trustee was PRLAP, Inc for a Bank of America Closing. Bank of America is attempting to foreclose on loan that was sold to Fannie Mae. However, it appointed a new Trustee, XYZ, LLC.

    Interesting….PRLAP, INc trustee that was the orginal trustee is owned by Bank of America and housed in Bank of America’s main branch in Charlotte.

    As you said, why…if Bank of America owns PRLAP, Inc and they are still trustee’s and completed the orginal loan closing as Trustee why would Bank of America need to hire someone else…??? nuts

  67. Appointment of Substitute Trustee is actually a deed instrument. It is often called a deed of appointment. Whether such a deed of appointment has been properly filed turns on all kind of issues, including whether the appointing party as a trust “beneficiary” under Va Code 55-59 and 55-59.1, whether it is a note-holder under Va’s version of the UCC, whether the person executing the document has anything to do with the purported appointing party, etc.

    To add insult to injury, a deed of appointment that has been recorded enjoys prima facie presumption of validity under a specific Va statute, as well as the common law.

    Raja, I would be interested in discussing your case. I’ve also talked to Matt Weidner about a few Va cases.

  68. My foreclosure;

    * Substiture trustee states Servicer holds the note and has insturcted them to foreclose.
    * On notive of Trusstee sale document the Tustee says that the orginal creditor instructed them to foreclose and holds the note
    * Servicer has admitted the loan has been sold is in a Mortgage Back Trust

    Problem is…in NONJUDICIAL STATE…it is a unpill battle to fight foreclosure and fraud.

  69. If we can produce any conclusion by the Trustee of record i.e., the title company acting as trustee on possibly millions of “Deeds of Trust”, there is most certainly this question to be asked. Was there a pre-existing agreement with “Securitizers” and the title companies (Trustee), to (become substituted before any legal action) to a foreclosure took place? Quite possibly the answer is yes. Then what would be the roll of the trustee in the transaction. Answer; To steer the transaction onto the MERS system by proper initial recordation. Under a closer look, how could the “Trustee have agreed to allow the promise of a clear and perfected chain of title to be entered into the MERS system knowing full well that there was already and always pending litigation taking place regarding the validity of the MERS system and pre- existing claims of clouded titles to mortgages. Where we relied on the fiduciary (Trustee) to protect our interest in the transaction, one wonders why if there was ever the slightest or reasonable doubt of clear title, the Trustee would have disclosed to borrower or used alternate methods of recordation. Homeowners were targeted and steered onto the MERS system by design and their respective trustee (bringing a pre existing agreement) full circle with securitizers

  70. Homeowner’s Policy of Title Insurance For A One-To-Four Family Residence

    2. Continuation of Coverage

    a. This Policy insures You forever, even after You no longer have Your Title.

    Covered Risks

    10. Someone else claims to have rights affecting Your Title arising out of fraud,

    So this why the Substitute of Trustee? To get the original Trustee out of the picture? Otherwise borrowers wouldn’t have to go to court. The Title Policy was to protect us.

  71. Both the author and the editor’s notes oversimplify the issues. Some states do not require mortgage assignments to be recorded at all. I don’t know if this is the case in the state recited in the submission or not, but it is certainly relevant. Also, the recited facts state that Bank B “bought out” Bank A. This statement could be interpreted a couple of ways – that Bank B merely bought a package of loans from Bank A, or that Bank B merged with and assumed ownership of all of Bank A’s assets and liabilities. If the latter, then why would an assignment be necessary even if this is a “record the assignment” state? Bank B owns all of Bank A’s rights in the deed of trust by operation of law due to the merger. There are plenty of valid issues to focus attention on without trying to constantly create new ones….

  72. Paula L. Nachman
    I am in Virginia too. I was the one who initiated cases against these, Samuel White , Shapiro & Burson, BIERMAN GEESING & Ward, McCabe Weisberg and many more. A lot of attorneys were fired from their original law firms. For Shapiro & Burson there is an attorney “Diann E. Green” please Google her name and see what pop ups on the scribed, these documents I prepared and placed on scribed. Myself and Mr. Matt Weidner took these people to the task.
    I am fighting with these people since 2007 and now my case as per the Judge order moving for quite title. I survived 2x Demurrer and now in process of Discovery.
    I have a lot of proof for these fraudulent people may be more than 200 fake fabricated documents, need help contact me

  73. Hell, they never even recorded a Substitution-of- Trustee in my case [California]. I used that as part of my defense, and still lost. These judges are all part of the fraud too. All that matters to them is that you didn’t pay your mortgage.

    Steve
    99Libra@gmail.com

  74. I believe the MD Governor has some responsibility (in MD) for allowing mills like Sam White to show up in court to begin the seizure process. Previously a corporation couldn’t foreclose – had to be a real person. Md immediately assisted the Banksters as the home grabs grew in intensity because folks had the “audacity” to lay down some challenges. This is yet another example of “our Government” doing something that most citizens would never allow, nor permit if they knew what their so-called representation was up to.

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