Hat tip to David Belanger
see also utc-itc
Readers and analysts should refer to this as very persuasive authority and if enacted by the State legislature, it is the law. But this is not the Uniform Commercial Code. The UCC applies in all cases where paper instruments are involved and transfers of that paper are involved — although you wouldn’t know it looking at many case decisions that essentially ignore the UCC and apply common law contract law and interpretation. This approach was knocked down by the Jesinoski decision on rescission — the courts are meant to enforce the law and are not authorized to make the law. The courts may interpret the law only if they find a specific provision that is ambiguous.
The UTC is different. It applies only where the trust itself is ambiguous or fails to address an issue. The Pooling and Servicing Agreements of the alleged “REMIC Trusts” purport to be the trust agreement; those agreements are ambiguous, opaque, and contain conflicting provisions and are nearly always missing key provisions like the actual acquisition of loans in exchange for payment by the trust.
Banks are counting on lawyers and pro se litigants to either not read the statutory laws or other persuasive and authoritative materials or not understand them. The reason why the banks have been so successful at prosecuting fraudulent foreclosures is that they made the false securitization scheme so complex that government and lawyers and judges look to the authors of these documents to tell them what it means — i.e., they are asking the banks to explain their fraudulent documents. The only way to counter that is to drill down on specific provisions and show that the “explanation” offered by the banks is simply compounding the initial lie — i.e., that the REMIC Trusts actually purchased the loans. They didn’t.
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