The Implied “Trust” and Discovery

If you look closely at the NOD, NOS, foreclosure complaint, and correspondence you see two things that are fairly constant — (1) they ALWAYS refer to the case as “US Bank” (or some other bank) and (2) they often don’t actually name a trust although it is implied.

This is classic misdirection. The Judge is thinking “U.S. Bank” when the case presented asserts that the Bank is not party to the action except as trustee for the “real party” which is not named and most likely doesn’t exist.

As an example of how to confront this, see below.

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https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

So faced with an unlawful detainer action by a trust that does not exist but whose name was used as the source of a credit bid at auction one intrepid homeowner has been keeping the “bank” and the “Trust” and the “servicer” at bayt for around 10 years. Each step of the way the judges were effectively bamboozled into thinking that this was a case of Lending Bank versus Homeowner who doesn’t pay his bills. The reference to being a “Trustee” was merely to imply the existence of a Trust without ever actually saying the trust exists.

And before I get started, take note: If I pay the fees I can file fake articles of incorporation or a fake trust instrument with the SEC. Once that is done, I ask for judicial notice of the corporation and the judge, along with the foreclosure defense lawyer, will most times agree that the entity exists. Our analysis here of the chain of title clearly shows that in many if not most cases, the at least one of the entities involved never actually existed. This is particularly true of so-called REMIC Trusts.

Look at the wording very carefully. It is their Achilles heel:

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, FOR RESIDENTIAL ASSET SECURITIES CORPORATION, HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-EMX4

Do you see any trust named?

Here is the wording I suggested to my client, subject to checking with local counsel:

Attorneys for the putative plaintiff have filed an action for unlawful detainer against this defendant. The action is brought in the name of an implied trust, for which US Bank is designated as trustee. An implied trust cannot be Plaintiff or Petitioner or party to any legal action. Besides lacking legal standing it lacks legal existence. And without an existing trust, the mere naming of oneself as trustee does not create or refer to a trust unless a trust actually exists.
 *
The attorneys referenced the action as U.S. Bank versus Edstrom. But U.S. Bank is obviously not a party to this action except as an agent, trustee or representative of the implied trust.
 *
Defendant has raised defenses that include but are not limited to whether the implied trust actually exists, whether U.S. Bank has any legal authority in a representative, agency, or trustee capacity and further whether the self-proclaimed servicer for the implied trust has any legal authority to administer the putative subject loan.
 *
Based upon circiumstantial evidence and disclaimers published by all the parties who seem to think they have an interest in foreclosing the subject property, the answer to all of the questions is “No.” This accounts for the obfuscation in discovery which would reveal the truth quite easily and simply.
 *
Accordingly, defendant served discovery upon the attorneys for the putative plaintiff. Simple logic dictates that if the trust does not in fact exist or if the trust exists but never acquired the putative subject loan, then the plaintiff does not exist, (or it has no legal standing), the attorneys do not have a client, U.S. Bank has not stated a basis for being named in this action, and the self-proclaimed servicer is deriving its apparent authority from a nonexistent trust.
 *
Or the claims of ownership or authority arise from a party or trust that never entered into any transaction under which such a party or trust purchased the putative subject loan nor any transaction in which such a party or trust purchased the rights to enforce the debt, note, or deed of trust.
 *
Despite numerous attempts by the defendant to obtain compliance from the putative plaintiff, defendant has been unable to obtain any actual answers or verification of even the evasive answers.
 *
The verification submitted by counsel for the putative plaintiff is signed by an employee of Ocwen loan servicing. It states that Ocwen is the attorney-in-fact for the putative plaintiff. Despite numerous attempts by defendant, the attorneys for the putative plaintiff have been unable or unwilling to reference or provide an actual document in which Ocwen is appointed attorney in fact, much less the scope of authority of the so-called attorney in fact.
 *
The alleged “verification” does not state anything with respect to the truth or accuracy of the response to defendant’s request for production of documents, set one. Instead, it is signed by an individual who claims to be a senior loan analyst for Ocwen, and evades the language of verification. The document plainly states that the verification is based upon information and belief and not personal knowledge. It also fails to state that the response is coming from the records of the putative plaintiff.
*
The response to defendant’s special interrogatories, set one contains the same defects. The same is true to the response to defendants form interrogatories – general, set one.
NOTE: The reason for the absence of language indicating that the records of the Plaintiff were examined is that this would cause the signor to commit perjury, inasmuch as the trust does not exist and has no records, has no bank account, no assets, libailities and no business.
*
Based upon the apparent unwillingness of the alleged attorneys for the putative plaintiff to comply with the requirements for a response to discovery, defendant seeks an order from the court compelling appropriate responses to defendants discovery together with appropriate verification in accordance with the Rules of Civil Procedure.
 *
Defendant requires an actual answer from an actual party in order to prove the lack of standing and lack of authority to represent by the attorneys, the named plaintiff, the alleged trustee, the alleged servicer and the absence of any actual power of attorney or even access to records of the named plaintiff, if it even exists. Defendant can think of no better party to  give the asnwers than the Plaintiff if it exists, and no worse party than Ocwen or any other servicer whose compensation is rooted in foreclosure not administration of loans.
 *
The many trevails of Ocwen as set forth in published cases and news reports, the settlements admitting or indicating that they failed to perform basic accounting functions and misled homeowners into foreclosure forms of cloud of incredulity in which if Ocwen seeks to assert itself in some way it must proove its assertions without any legal presumptions which are normally used in lieu of facts that are widely known to be accurate and uncontested or admitted.
 *
Based upon 10 years of work as a forensic analyst and investigation into dozens of other cases in which these parties have asserted nonexistent rights to purported loans, defendant believes that the trust does not exist, that no transaction ever occurred in which the name of the trust was used to purchase the alleged subject loan, that US Bank has no authority as trustee or agent for anyone who does own the alleged subject loan, and that Ocwen possesses no right, title or interest in the subject loan nor any right of administration of the loan on behalf of of any party meeting the definition of an actual beneficiary under a deed of trust.
 *
The opposing group of parties are the only parties that have access to the actual evidence that would prove defendants defenses. There is no way to obtain such evidence without getting compliance from those parties.
Defendant hereby challenges the authority of opposing counsel in that it appears to be claiming to represent a plaintiff that does not exist.

 

 

13 Responses

  1. Wiley Coyote, pretty much every state agency has abdicated their responsibility to ENFORCE THE LAW regarding recording statutes. Your state legislature, no matter where you live, has moved to allow the banisters open season on your property title.
    Here in the 7th Circuit your pretty much screwed at every turn, and Wisconsin Courts have been horrible for the homeowner, too.
    The battle before the court is multiple loans originated against the title to my res, enabled by the non recording of the mortgage in the name of the Trustee for the trust. Multiple pledges to multiple securities.

  2. @UsedKarGuy
    I just read the complete paper of Mr. James P. Campbell of the University of Washington, “An Inquiry into the Legal Standing of
    Rogue REMICs in Foreclosures” (July 2016).

    https://poseidon01.ssrn.com/delivery.php?ID=078097097001121073089005008081127098026008055027062063031026081093116081067092003074110126018097001111053098087100113080094000007011088000015101029113004116014001005003018024084007091127004104096068029074083124065073026029020107095099031093126007119024&EXT=pdf

    Quite a read.

    Thanks for that tip. It could prove very beneficial.
    The only thing I have trouble with is a college student having this much fortitude, insight and attention to detail.

  3. google “rogue remics” and find out about the trusts that are indeed “empty” and continuing to pursue foreclosure. I have docs that show the trust paid off in full (except for the subordinated tranches) and the equity tranches are paid with no posted losses. Failure to state a claim?

  4. but i think they got it right in this case caption:
    U.S. BANK N.A. IN ITS CAPACITY AS TRUSTEE FOR THE REGISTERED HOLDERS OF ASSET BACKED SECURITIES CORPORATION HOME EQUITY LOAN TRUST 2004-HE8, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-HE8

  5. Excellent post. I will cross post. But do you have any clue as to why banks are using that obscure language “US Bank as Trustee for US back secuirities X to Y” What is that all about? Who files litigation as a plaintiff in the name of a trust with “US backed securities”. What utter nonsense. See my blog on court corruption at http://www.marygsykes.com. I specialize in probate court corruption, but I also get plenty of foreclosure corruption in Chicago too. These judges will rubber stamp anything as long as the Motion is “bank’s mortion for….” It’s all disgusting.

  6. Excellent Neil. Can understand why judges are clueless. After the Enron scandal — the CEO claimed that the scam/fraud was arranged so that judges/courts would not understand it. But, what about our government? Where have they been? Settlements that did nothing to help homeowners or avoid continuation of the fraud. The government cannot be as clueless as courts. Judges typically do not have a background in “financial engineering.” Particular Government agencies are supposed to have that training. When will they come clean? , .

  7. The bank atty submitted a request for judicial notice from us bank… At first I thought I can finally found the trust but the bank atty said it was a mistake.

  8. Yeah I’m getting the circle jerk between Bank of America Home Services. Bank of America NA. Freddie Mac. FHLMC BAC133 Trust. Creditor. They just interchange the names at their Convience between mortgage. Note. Holder. Creditor. Owner.

    Of course the liars at the FRAUDclosures attorneys office have no idea what they are saying. Atleast I’ve kept a paper trail thru the years.

  9. Yeah I’m getting the circle jerk between Bank of America Home Services. Bank of America NA. Freddie Mac. FHLMC BAC133 Trust. Creditor. They just interchange the names at their Convience between mortgage. Note. Holder. Creditor. Owner.

  10. Ask for proof of a contract between plaintiff bankster/servicer and the trust. Proof of who exactly the plaintiff’s lawyer represents.

  11. This is exactly where my case is today. I’ve submitted a motion for production of attorney’s credentials, which was denied without prejudice until court decides on remand. It will be re-filed then. But, did wonder if a reference to the PSA Section 3.05 would be allowed (not being a party to that agreement, you know). There was a state supreme court case recently where court denied such motion because defendant did not provide some evidence in advance that it could be a problem. Court assumes attorney-client relationship exists, unless shown otherwise. How would one prove a negative like that?

  12. yeah! what he said…

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