Ratification of Void Assignments to REMIC Trust is Clear Nonsense

The Yvanova string of cases in California are based upon some vague notion of whether a void assignment (e.g., past the cutoff date) could be ratified by the trust, trustee or trust beneficiaries.

Firstly, the trust can only operate through a trustee. That is black letter law in every state. In REMIC Trusts the Trustee has no such power. If the Trustee attempted to do so it would not only be void, in accordance with the New York law allowing the creation of common law trusts, it would also be against the interests of the beneficiaries and for the interests of the Trustee, a claim that has been levied against U.S. Bank for example on multiple occasions.

Further, no trust exists under the laws of any state in which no assets are entrusted to the Trustee who is an active manager of actual assets. Since that description is accurate as to virtually all REMIC Trusts, there can be no ratification because legally there is no party who could ratify it. The trust doesn’t exist and the Trustee has no powers because no assets were entrusted to him/it/her.

Second the beneficiaries would NEVER attempt to ratify a void assignment because that would violate the REMIC statute under the internal revenue code. The consequences of that would be collapse of the REMIC status and the application of draconian results, to wit: even the return of capital would be turned into regular, taxable income — defeating the entire alleged purpose of the so-called trust. (I say so-called because in no case, out of thousands, have I ever seen a REMIC Trust that was ever activated and hence be considered a legal entity.)

Since the Yvanova court was not presented with such arguments and since they didn’t think of it on their own, it is probably necessary to introduce evidence from a CPA as to what would happen if the REMIC Trust ratified business activity outside the mandated 90 day cutoff as set forth in the REMIC Code in order to make it clear that there are no reasonable circumstances under which such ratification could take place. The produce evidence from an expert that such ratification has never occurred.

Hence with ratification off the table, the void assignment slips back into VOID, not voidable. I don’t think the Yvanova court would have any choice but to agree.

5 Responses

  1. I AM DEDICATED BUT FRUSTRATED. IF INFACT US BANK IS LOSING EFFORTS AS TRUSTEE TO FIX ,WHY NOT A LITTLE CLUE OF WHERE, WHEN

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  2. Steve Nelson — you are correct. Nothing matters, if the courts ignore. And, that is what has happened – for years.

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  3. The problem facing the challenge is that judges simply will not read the 4 corners of the TRUST document and parse the language of the pooling and servicing agreements or demand documentary proof of the establishing of the trust or the violation of the late [if at all] transfer of the note assets into the corpus [pool of note/assets]. Such void transfers by law revert in most cases back to the assignee. Until the judges start properly ruling on these thorny issues, the defense proving a corrupted transfer is difficult. Hence, many fail to show the void assignment. Moreover, the courts save for Yvanova [void assignments] and a few others [in BK courts] like to argue that the borrower lacks standing. The is nonsense since the courts who state this position clearly don’t understand standing as a fundamental requirement of litigation. How does one put $X into escrow for a down payment, obtain a grant/warranty deed, pay into the asset for years as an owned investment and not have standing to protect the asset from theft by crooked bankers?

    If we can help borrowers in their suits, call us at 818.453.3585. Consumer Rights Defenders, assisting pro se litigants since 2007.

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  4. I appreciate your dedication. If only the powers that be were held to the letter of the law.

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  5. Reblogged this on Deadly Clear and commented:
    From your lips to his honor’s ears!!!

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