From FAQ: Powers of multiple Trustees and effects of multiple beneficiaries AND getting soemthing recorded before the foreclosure sale takes place

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.

16 Responses

  1. I find they can not produce the original title and if they can’t then you need to stop paying them. If they can’t show you on a bank ledger where they pulled money out to pay for the property, show the contract you and them both signed with ink signatories present and produce the title, not a copy mind you. Forget it, it’s fraud. sorry to tell you the truth, we’ve been set up

  2. Neil, how can anyone file a “lien…BEFORE a mortgage…was securitized”? Mortgages are probably securitized while the borrower’s ink is still wet, or before. What kind of lien are you suggesting? UCC 1 claim, a statutory lien? Washington State has over 60 statutory liens! So, I do not fully understand the first two lines below, nor how to apply it. Do you have any sample liens as you are suggesting? We’re facing 4/5 fclsr date by Chase (FDIC from WaMu), so help is expedient. I can prepare the lien if I know what to say in it and the form/style to put it in.

    Your reply will be most appreciated. I really like this idea to try.

    “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.”

  3. One more case for yall – norwest corp aka banco real , owns bank of america, nationsbank ,banco mortgage corp norwest mortgage corp in 1985 norwestern took over first union corp aka wachovia corp and the money store inc . Now norwest already own wachovia in 1985 , look at this good , in 1998 norwest took over wellsfargo bank na . Now norwest owns wellsfargo and wachovia corp ,1985- ,1998 . So how can wellsfargo bank by wachovia bank corp in 2008 , if wellsfargo and wachovia bank was already own together in 1985 and 1998 . Fraud rite their .

  4. Where is the recorded trustee of the benifiary owner of these bank . Have u founded it yet ? Nobody has it do the irs has it or occ or the attorney gen office has it , isent this a birth right / benifiary right, a document been hidden when its- a- u, have, to file docket by law . U have to file it and serve the owner copys of the terms and cond . And u a a court by law trust any way why wouldn’t u want to file a case . How couldn’t nobody see that the dockets wasn’t filed . Somebody would have to ask for a court record docket saying a judge saw and is acting on the behalf of the trust cond and terms as well . Folk just pulling out dockets out their pockets saying they are trustee and running a bank off of it too . No court records of a trust for a bank no where , but a attorney in fact , what is that ?

  5. hi , i have 2 loans the 2nd one they are foreclosing on . I got the first loan in 2000 with world savings . the 2nd one was predatory lending by world savings in 2004 . wachovia bought world savings now wells fargo has it . i did a record search and it is in world savings name . , there lawyer is claiming 15 pa. C.S 1929 {b]

  6. What can an owner do in a situation where there are two 1st TD? The original owner quit claim on the property and a friend was put on title. The friend was able to get a loan on the property the mortgage company that did this loan for this person thinks it has 1st TD. How the mortgage company and the Title company not see that there was an existing 1st TD on the property already is negligence on their part and an investigation should be done…that’s another problem. Anyways the “friend” , after getting the loan, quit claimed herself and the original owner was back on title but he did know that the friend defaulted on the loan and lender is foreclosing on the property. The owner wants to keep his home and is in good standing with the orginal lender’s 1st Mortgage loan. He has been told to file a motion to enjoin foreclosure sale which will hault the foreclosure process…but what then? The is the motion called that requires the lender that is foreclosing on a property to remove the cloud on the title before proceeding? I hope someone that is familiar with California Real Estate Law can help answer this question.

  7. many months ago I stated on here our house was paid off, to this day we are still being told my “some” citimortgage employees that is the case, I recorded it, had an attorney ask me if a 120 Ruling, motion to sell our house has ever gone in front of a judge for approval. Well up until yesterday, there hasn’t been anything. We get in the mail yesterday, 11 days before our scheduled auction, a notice of hearing scheduled on sept. 1. How can citimortgage do things backwards? I do actually have proof that citi has already been paid first community mortgage from new mexico for this account and a letter from first community mortgages corporate attorney stating they no longer have any interest in our loan are not the servicer. How is this possible? I have also found evidence that his first loan was NEVER paid off by first community mortgage, just an open line of credit, that my husband was told was a second? We are filling with our District Court on Monday our response and putting our proof that citi has already been paid for this loan, as well as other docs.

    Can citi do this? All the steps are backwards? In colorado the motion to sale has to be done first? There are NO attorneys here in Colorado who will help any of us!

    Now what do we do? I have been told to do a Lis Pendus..not sure how to fill that out…file for a quite title…again not sure how to go about that, I want to name the correct parties. I have been told to do a full reconveyance since only my husbands name apprears on everything….again not sure how to do that…PLEASE ANY ONE???? wlough@bresnan.net

  8. hi,
    my name is laurie mendoza. i live in fair oaks, ca and have gone through the NOD, TRUSTEE SALE and now i’m in UNLAWFUL DETAINER. i filed the ANSWER to the unlawful detainer summons and complaint. plaintiff WELLS FARGO filed a MOTION TO STRIKE portions of my ANSWER. i filed an OPPOSSION to PLAINTIFFS MOTION TO STRIKE. MOTION TO STRIKE was heard and granted. two weeks later the ORDER TO MOTION TO STRIKE WAS AMEDED and i was granted LEAVE TO AMEND UNLAWFUL DETAINER ANSWER. i recieved the AMENDED ORDER GRANTING ME LEAVE TO AMEND less than 48 hours the AMENDED ANSWER was due or a DEFAULT NOTICE would have been enterd on my case. of course i got the AMENDED ANSWER ALONG WITH A MOTION TO DISMISS IN ON TIME. PLAINTIFF, WELLS FARGO FILED FOR A HEARING WITH OUT A JURY. today i COUNTERED and requested a JUTY TRIAL. I WAS GRANTED THE JURY TRIAL.
    I WOULD LIKE TO KNOW IF THER IS ANYONE WHO WOULD LIKE TO GIVE ME SOME WORDS OF WARNING ON WHAT TO DO AND WHAT NOT TO DO RE: A JURY TRIAL ON A UNLAWFUL DETAINER. ANY THING I SHOULD BE LOOKING FOR WHEN JURY SELECTION TAKES PLACE. I NERVIOUS AS HELL BUT IM THIS FAR AND WANT TO SET A ORESIDENCE FOR OTHERS FACING EVICTION UNDER 1161a. any words of wisdom would be gladly accepted. i hope i maybe can make a change for others besides myself.
    sincerely
    laurie mendoza
    ldmendoza2003@yahoo.com

  9. GMAC foreclosed on my house even though they were not even listed as a trustee, they were only servicing the loan, the recorders office still showed indymac bank in 8/06, after gmac obtained the loan from greenpoint, they never recorded anything until 10/09 when they started the foreclosure process and then they didn’t even do that right. They were too much in a hurry to get the dam house, haste makes waste.

  10. […] From FAQ: Powers of multiple Trustees and effects of multiple beneficiaries AND getting soemthing re… […]

  11. Can you give me some statutes or codes to back up the above with the county that disputes it. I have even given them some and they say it is irrelevant, yet my home is up for sale.
    Is it right they (the new trustee) filed a default with no authorization from anyone on the DOT, then filed a Sub. of Trustee from authorized by MERS. I think that is backwards.

  12. 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

  13. 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.

  14. 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.

  15. 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?

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