COURT OF APPEALS
U.S. BANK, N.A., AS TRUSTEE FOR RASC 2006KS9
For ten years the banks and servicers have had us going down a rabbit hole that they had carefully prepared. By directing the attention of the Court, the homeowner and homeowners’ counsel to the PAPER TRAIL the banks and servicers were assured that in all uncontested cases they would get the foreclosure they wanted and were further assured that in most cases they could fabricate and forge the necessary documents to “fill in the gaps” in the paper trail.
The objective of the mega banks and “Servicers” was to insert parties in the foreclosure process who literally knew nothing. By making each new “successor” servicer increasingly remote, they were assured that the robo-witness at foreclosure could not possibly slip up and tell the truth about the ownership and balance of the loan.
Discovery requests were inevitably directed at the most recent party claiming authority to service the loan when in fact their authority derived from the Trust, which as it turns out, didn’t own the loan and did not represent anyone who did own the loan. Because of the legal presumptions attached to “facially valid” documents the banks and servicers were able to argue through their sham surrogates (“successors”) that any inquiry beyond the paper trail was irrelevant because the the issue had already been decided in the early motions of the case wherein those legal presumptions were used to sustain the implied perspective of the banks, servicers, and their surrogate successors.
Practice Note: Third party discovery is now essential for a successful outcome, to wit: the “previous” servicer should be subpoenaed along with any other predecessors.
Which brings us to the Bolling case. The Courts have been bending over backwards and twisting legal doctrines to “facilitate” the processing of foreclosure which in a manner of speaking is the equivalent of “Let’s give him a fair trail and then hang him.” The outcome has largely been the same even though the appearance of due process and the appearance of a trial has been has been preserved.
Court decisions have essentially been based upon the proposition that the transfer, even if in conflict with the provisions of the “Trust document” (PSA) could be ratified and that therefore these were internal matters for which the homeowners lacked standing to even raise. Thus knowing that the Trust had not paid for the loan, knowing that the Trust was not even named as a party in the paper trail and could not have been party to any transaction or even the receipt of documents the Court nonetheless gave Judgment to the Trust or some party claiming to be an authorized representative of the trust.
Hence, as the Yvanova court said, ratification of a void act means nothing more than the original ‘Nothing” that started the chain. Ratifying a forged instrument does not suddenly create the rights that were never there to begin with; the only ratification that would have any legal effect would be something from the initial “borrower.” And there is another reason why ratification is out of the question and it is stated in both the prospectus to investors and the PSA — neither the investors nor the “Trustee” have any right to know about or even inquire about the loans supposedly held in the “loan pool.” As it turns out there are no loans in THE loan pool that might be owned by the Trust.
After some decisions that questioned whether “void” means void and some stretching to somehow make “void” mean voidable, the Massachusetts Court of Appeals has had enough of these gyrations. If the transaction was void under New York law or for any other reason, then it could not then be used against a homeowner in foreclosure. in this case void really means nothing because in most cases the originator did not fund the loan and none of the “successors” in the paper trail actually engaged in a financial transaction in which the loan was purchased, hence making the endorsements and assignments equally void.
N.Y. Law) incorrectly claimed documented NY Courts’ interpretation of ultra vires transfers by Trustees as voidable. (e.s.) Bassman argued given NY Courts’ inconsistency, that without a party voiding illegal transfers into NY Securitized Trusts, the Court cannot determine that a break in the chain of title to the mortgage exists. However, 6 cases were simply inapposite; none upheld a “voidability” interpretation of attempted ultra vires transfers; and two actually upheld NY EPTL 7-2.4 after Court scrutiny.
“If, as alleged by Hoynoski “upon information and belief,” the mortgage at issue here was subject to a pooling and servicing agreement that involved a trust formed under New York law, the terms of which were contravened by the assignment of the subject mortgage into the trust such that the assignment was void ab initio under New York law, NY CLS EPTL §7-2.4, the Bank arguably would not have acquired good title and would have no superior right to possession herein. This analysis does not implicate third party beneficiary status; rather it involves a direct challenge to a prima facie element of the Bank’s case, namely that it holds good title.” (e.s.)
“the closing date for the Trust was on or about June 14, 2007; the PSA allows only an additional 90 days beyond June 14, 2007 for any loan to have been reviewed and rejected. This assignment … happened on July 28, 2009. The trust was already closed … no evidence of the transfer of the Note. …
“As NY Trust law explicitly voids any transfer of assets in contravention of the Trust’s instrument, this assignment is void as a matter of law. Deutsche Bank … as Trustee … did not, therefore, own the mortgage and therefore, did not have the power to exercise the power of sale in the mortgage. The foreclosure is therefore void. Plaintiff lacks standing to bring this eviction action.” Glaski v. Bank of America, No. F064556 (7/31/13)(e.s.) Cal. 5th App. Dist.), Saldivar v. JPMorgan Chase, 2013 WL 2452699 (Bky. S.D. Texas 6/5/13) and HSBC Bank USA, National Association, et al. v. Marra, No. 2008 CA 000630 NC (Aug. 14, 2013) give weight to the clear language of New York EPTL § 7-2.4; they voided these foreclosures because of ultra vires acts.
Filed under: foreclosure |