Questions to Ask About the Trust and the Trustee

In the final analysis you are looking for evidence of absence of any real events currently presumed as facts in any foreclosure case.

The trustee issue is a jurisdictional issue. If the Plaintiff Trust does not exist, then it has no standing to make or pursue any claims. If the named Trustee is not engaged in the active management of active trust affairs on behalf of the beneficiaries of a trust, then it is not a trustee imbued with the powers to administer assets that have not been conveyed and entrusted to the Trustee.
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If the named beneficiaries have received a promise from the named “Trust” and the beneficiaries have expressly disclaimed any interest in the “underlying” loans, notes, mortgages or debts, then they are not beneficiaries and the entity is not a trust. (That fact pattern describes individual contracts with each investor who purchased a promise to pay executed by someone allegedly on behalf of an entity self proclaimed as a trust. If the named entity does not exist then the party who executed the isntruments may have liability for the promise).
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Since the Trust has not been identified as having been organized and existing under the laws of any jurisdiction, it is entirely appropriate to ask questions about the existence of the trust and its right to do business in the state or the courts. The second jurisdictional issue is subject matter jurisdiction in which the question is whether the trust owns the indebtedness. I frequently deal with these issues in drafting the substance of documents to be filed with the court, subject to opinion of local counsel.
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If prior demands for discovery are clear the appropriate strategy is to force the issue through a motion to compel. Filing an “amended” request fro discovery probably starts the clock all over again. By the time you get to a demand for sanctions for contempt the case could be over. If it is denied she should consider an interlocutory appeal on the issue of whether the record contains assertions or evidence of the existence of the trust. The only prejudice that could exist would be that the trust doesn’t exist and that “they” (actually the lawyers) would be “prejudiced” because they couldn’t foreclose using the trust name.
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There is no doubt in my mind that one or both narratives are true: (1) the trust doesn’t exist and never did and (2) the loan (i.e., the indebtedness) was never purchased by the trust, acting through tis alleged trustee.
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One of the problems here is that it would be wise, although not essential, to notice the named Trustee for deposition duces tecum. That’s often a problem because most homeowners not appear to have anyone competent to conduct the deposition. In a normal deposition, one MUST ask the witness identifying questions like
  1. What’s your name?
  2. Who do you work for?
  3. What is the relationship between your bank and this trust?
  4. Besides the alleged Prospectus and the alleged PSA, what agreements exist wherein the Trustee bank is obligated to do or receive anything from the trust, directly or indirectly. [This one should be broken up into parts].
  5. Under what jurisdiction was the trust organized?
  6. Under what jurisdiction is the trust now existing?
  7. Who is the trust officer for the trust?
  8. In which department(s) are trust matters generally handled in the Trustee Bank?
  9. In which department(s) are trust matters usually handled in the Trustee Bank for this trust?
  10. Has the Trustee bank published any memos or guidelines concerning the administration of securitization trusts?
  11. Assuming that the word “loan” means the indebtedness of the homeowners here in this case, on what date did US Bank as trustee purchase this loan to hold in trust?
  12. Who was the seller of the debt in that transaction?
  13. Was payment for the loan performed through a financial account held in the name of the Trustee for the alleged trust?
  14. How did US Bank as Trustee for the alleged trust perform due diligence to confirm the existence and ownership of the debt?
  15. Who are the beneficiaries of the alleged trust?
  16. Who is the trustor or settlor of the alleged trust?
  17. What is the date and name of the instrument that purports to create the trust?
  18. Describe the current functions of US Bank as trustee of the alleged trust.
  19. Describe the current assets of the alleged trust.
  20. Describe date and content of the last financial report received by US Bank as trustee for the alleged trust.
Most likely opposing counsel will object to the question’s relevancy at the time deposition is taken. But relevancy is not even a question at deposition which is by nature a fishing expedition. Even if opposing counsel was right that the question does not directly relate to proof of a fact asserted at trial, you are still entitled to inquire because it might lead to the discovery of admissible evidence.

12 Responses

  1. ian keep me on your list please! what’s happening it doesn’t even happen in 3rd world countries, putting teethless fragile long time clients on the street for @wellsFargo abused our trust! shame on culture not taking care of their innocent citizen

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  2. @ ian,

    We are working on something to go after the judges bond and/or anyone required to have a bond for work in this clerks office. Don’t know if it will work, but might as well try. Also, filing a complaint against the attorney in the case, who worked previously with Trustee. Needs to recuse herself, immediately.

    Liked by 1 person

  3. So much good educational info.! Need so much concentration may be I need to find helper to fill out all the question with the right answer! I’m in Orange County area house list in Kern County! I need to fight that modern robbery generation wearing suit & tie bullying simple people wiearing uniform tuning from job to job to wind up on street for Fake up Modification by Wells Fargo

    Liked by 1 person

  4. 1st you have to have an FHA Mortgage. Then you have to find out if your loan was included in any of HUD’s Single Family Loan Sales, also known as DASP. Then you have to locate the Limited POA, which HUD executes, but it is only for a limited time (1 year). States right in the Limited POA the expiration date AND that the Note & Mortgage are to be properly Assigned & endorsed by the expiration date. There are only 108, 616 of us that were in HUD’s Single Family Loan Sales, which by the way was illegal & Unconstitutional. HUD never codified the program into law. Look for a lawsuit from the DOJ & CFPB against HUD, which is hopefully forthcoming.
    You can read HUD’s Inspector General Audit Results. Google HUD, Inspector General, Single Family Loan Sales.

    Only problem with the IG report is, HUD forgot to tell him, they can’t finalize the proposed rule, because they withdrew it in 2007. Fascinating stuff really. Their own IG is telling them to finalize a rule, codify it into law (after the fact) and HUD can’t even do it.Impossible. Not only did HUD not have a final rule, it withdrew it’s proposed rule.

    Don’t you worry, I’m going to make them pay. Violating the Administrative Procedures Act is nothing to brush off. I’ve got them, and I’m not letting go. The Bureau of Consumer Financial Protection, The Dept of Justice, The Office of Management and Budget, will all pay dearly if they don’t sue HUD. Not only did HUD violate the APA but they violated the Civil Rights of 108,616 families. Hard working, middle & lower class families. I will be their voice, if I die doing it.

    Liked by 1 person

  5. Sandy…who granted the LPA and to whom was it granted?

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  6. Kwaja could have won this. The Limited POA executed by HUD expired in 2015. This Note could never be LEGALLY endorsed beyond HUD. The Power of Attorney expired. Exact same thing happened to me, only difference is, I have the Limited expired POA in my lower court record.

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  7. Good point ANON- the game of musical chairs continues. And as the foreclosure machine rolls on, the title-laundering continues unabated. Just like money laundering, the money comes from illicit activities, goes through a legitimate business, and comes out clean.
    Here, the corrupted, defective titles are laundered via the foreclosure process. With the court’s blessing.
    Has anyone ever filed suit against the court, charging them as co-conspirators in a fraudulent scheme to convey ownership to the persons committing the criminal acts?
    I don’t know if this is worded properly, but I haven’t seen any actions of this nature.

    Liked by 1 person

  8. How to oppose motion for relief from stay by Bank of America in BankrupcyCourt ?

    Thanks,

    Leo Blas

    >

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  9. Getting discovery is extremely difficult, but Neil is right on it. There are likely jurisdictional and business entity formation issues..

    Also know that the pooling and servicing agreement references the “indenture” agreement AND OTHER governing transactions such as securities administration. A security administrator is also called a “trustee” in the industry. In this context, the trustee is NOT the original intended fiduciary trustee — so the capacity to act on behalf of the named trust does not exist. Most often the fiduciary trustee and the securities administrator are one and the same.

    Why is this important? Because if you are dealing with the securities administrator instead of the fiduciary trustee, the loan has been swapped out of the trust by derivative contract, with collection rights sold to an unidentified debt buyer. This contract is NOT a security, but they will try to attach the contract to the claimed security trust by claiming that the Trust – not the trustee, is the legal owner. This is often evidenced right from the beginning as the trustee is rarely represented separately. Thus, making the trustee to the trust one entity represented by the same counsel. Not only should jurisdiction/business formation be pursued, but also representation.

    .

    Liked by 1 person

  10. Plaintiff’s counsel had the big manila accordion folder with

    WELLS FARGO V RINALDI

    printed on the side.

    “Judge, it even says it on her folder: WELLS FARGO is the client, NOT HSBC!!! IT’S ALWAYS BEEN WELLS FARGO!! HSBC IS A SHAM PLAINTIFF. THE WHOLE FORECLOSURE, INCLUDING THE FIRST ONE, IS A SHAM PROCEEDING!!”

    “That’s enough, Mr. Rinaldi!”

    Expect to get nowhere with any argument here in Wisconsin.

    Liked by 2 people

  11. No. 11 here is key:

    “Assuming that the word ‘loan’ means the indebtedness of the homeowners here in this case, on what date did US Bank as trustee purchase this loan to hold in trust?”

    If US Bank acquired the loan or debt post-default (forget about the note and mortgage for now), then it violated federal law because a national bank cannot purchase loans that are in default. Such loans are not eligible investments under federal law for federal depository institutions to purchase. And any act that violates a statute is void ab initio.

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