How to Use National Settlements as Part of Foreclosure Defense

Bill Paatalo brought this provision to me attention again. It gives a virtual checklist for discovery:

  1. All DOCUMENTS regarding the National Consent Judgement’s (CONSENT

ORDER) “Settlement Term Sheet (I)(A)(4) which reads as follows:

  1. Servicer shall have standards for qualifications, training and supervision of employees. Servicer shall train and supervise employees who regularly prepare or execute affidavits, sworn statements or Declarations. Each such employee shall sign a certification that he or she has received the training. Servicer shall oversee the training completion to ensure each required employee properly and timely completes such training. Servicer shall maintain written records confirming that each such employee has completed the training and the subjects covered by the training.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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So if a homeowner is confronted with an entity that was part of the settlement, they should ask for the following:

  • standards for qualifications,
  • standards for training
  • standards for supervision
  • identification, time and dates of training of any persons who had worked on the subject loan, to wit: preparing affidavits, sworn statements or declarations
  • certification signed by employee that employee received the training
  • how did servicer oversee training completion
  • written records confirming that each such employee has completed the training and the subjects covered by the training.

Losing Strategy: “Getting it on the Record”

I know I am going to take some heat for what I am about to say. In my opinion “getting it on the record” is an excuse for losing and implies that the judge’s decision was wrong and can be appealed when in fact the judge’s decision was correct and will be easily affirmed on appeal.

Clients and lawyers and others frequently ask me to “review” something they have written. Below you will find my usual responses. The main trap door that losing homeowners fall through is that they bury their own argument in an attempt to litigate the entire case (i.e., to get it on the record, AGAIN) on each and every filing they submit to the court.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Here is my reply to most people whether they professionals or lay people.

The only caveat to this is that I personally know of many excellent legal writers “out there” for whom this article does not apply. They understand that the goal is to win in litigation and that means victory in as many points in the timeline of motions and discovery as is possible. You don’t win without that.

The second caveat is that persuasion and credibility are two sides of the same coin. You gain nothing by tossing out allegations that you can never prove and that are not backed up with foundation and corroboration. Practices like that lead to stuffing pleadings with irrelevant gibberish which might be true, but will dilute the good arguments and will never be considered, much less allowed into evidence.

Here are some of my common replies, shortly before they ask what it will cost for me to rewrite the pleading or memorandum.

In my opinion this needs to be rewritten, it needs to be much shorter and it must focus in on a small number of bullet points. The first points must catch the attention of the judge since it is unlikely that the judge will read beyond page 2.A “Reply” should be exactly that, to wit: something that answers the objection filed by or on behalf of ABC. While components of a reply are present they are buried under what is largely re-litigating the entire case.
Your point about all defendants being represented by the same attorney is well-taken. Do something with that, don’t just say it. Perhaps you could float an argument like “Opposing counsel seeks to invoke alter ego status on the one hand in order to invoke res judicata and on the other hand wants us to believe that ABC is a separate and independent entity with no connections to the alleged violations of law asserted by Plaintiff.
Under either scenario the baseline narrative is completely dependent upon a chain of ownership of the debt that is neither asserted nor substantiated by any foundation or documentary exhibits or evidence. In a sleight of hand maneuver, Defendants instead want us to focus on the note or mortgage (deed of trust), which at best are only paper instruments supposedly memorializing a transaction that is neither asserted nor in existence.
Thus they argue a false equivalency between the debt and the note despite no allegation nor proof that the note accurately memorialized a financial transaction in the real world between maker and payee on the note. They neither allege nor argue the merger doctrine in which the debt is absorbed into the note. This would force them to prove the money trail which nobody in the shoddy history of false claims of securitization is ever willing to allege or even provide a response.
“Getting it into the record” is not a trial strategy. It is a losing strategy both at the trial level and appellate level. That is because the goal is wrong. The goal is really to win, which can be and has been done in tens of thousands of cases. Getting something into the record is a euphemism for negligence, because it means that it is a data dump rather than a compelling narrative designed to persuade the trier of fact. Data dumps are virtually ignored by judges, just as you would if you were sitting on the bench.
“Defendant Counsel’s “Representation” of all defendants, each with supposedly different interests is at odds with his grouping of all the defendants together — ignoring the fact that if the case is decided against one of them it might be applied to them all. Do all the Defendants consent to this representation? Or, as alleged by Plaintiff, are they all sham conduits working for a fee in a common enterprise to create the illusion of an interest in ownership, servicing and transfers of the recorded encumbrance? Does one of them own the debt or are any of the defendants in privity with the owner of the debt?

NY Monroe Case: Default entered against homeowner — CASE DISMISSED on Standing — US Bank Never refiled.

multiple choice robo-pleading

NO PLEADING: HOMEOWNER WON ANYWAY

I have held off on discussing this case until some time passed. As far as I now know US Bank, like several cases I won, has not refiled for foreclosure. There is a good reason for that. US Bank is not the Plaintiff. The Plaintiff is named as a REMIC Trust, for which the attorneys claim that US Bank is the Trustee.

As such the Plaintiff does not own nor have any interest in the loan either as owner or servicer. Hence the named trustee (U.S. Bank) is named but it has nothing to do since the trust is nonexistent and in all events no attempt has ever been made to entrust the subject mortgage into the fiduciary hands of U.S Bank.

And THAT is because the only party with an equitable interest in the debt is a group of investors whose money was used to fund the origination or acquisition of the loan. The investors meanwhile think that their money was placed in trust and then used to purchase, not originate, loans.

Every once in a while a wily judge catches on from the face of the documentation. This judge ruled against US Bank as Trustee for a named REMIC Trust because he didn’t believe US Bank or the Trust was actually related to the subject loan. He gave them a chance to correct their pleading, but apparently out of fear of perjury, the lawyers for the nonexistent trust backed off, apparently permanently.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see Memorandum and Order – USBank Trust NA as Trustee for LSF9 MPT v Monroe

Quoting from the complaint field by lawyers for their supposed client, a nonexistent trust with a completely denuded trustee, the court includes their own allegation in its ruling:

2 (“Plaintiff is the owner and holder of the subject Note and Mortgage or has been delegated authority to institute this Mortgage foreclosure action by the owner and holder of the subject Note and Mortgage.”);

What does that even mean? This is a perfect example of multiple choice robo-pleading. Either the Plaintiff is the owner and holder of the subject note or mortgage or they are not. If they own the debt,  they don’t say as much and certainly didn’t offer any proof at their uncontested hearing on damages. It’s pretty hard to lose an uncontested hearing but US Bank has done it multiple times, as reported in this case.

If they have been delegated authority by the owner and holder of the subject note and mortgage, they fail to say who delegated that authority and how the delegation occurred. Since the express purpose of the trust was to own the debt, note and mortgage and make payments to investors based upon the trust’s ownership of the debt, note and mortgage, Demoting the trust to the status of a conduit or agent would be completely adverse to the express wording and authority granted in the trust.

Actually that kind of wording is exactly what enables the players to claim interest in notes and mortgages adverse to the interests of the parties whose money was directly used to fund the origination and acquisition of loans.

 

Here are some revealing quotes from the District Judge:

The Complaint does not contain any details concerning U.S. Bank’s role as trustee or the powers it has over the trust property (including the mortgage here). (e.s.)

The party asserting subject matter jurisdiction carries the burden of proving its existence by a preponderance of the evidence. E.g., Makarova, 201 F.3d at 113; Augienello v. FDIC, 310 F. Supp. 2d 582, 587–88 (S.D.N.Y. 2004). This is true even on a motion for default judgment, since the principle that a default deems the well-pleaded allegations of the complaint to be admitted is inapplicable when a court doubts the existence of subject matter jurisdiction. Transatlantic Marine, 109 F.3d at 108.

2 While some of these issues were discussed elsewhere by U.S. Bank’s counsel, e.g., Dkt. No. 7, they were not included in the affidavit filed in support of default judgment.

“When a default is entered, the defendant is deemed to have admitted all of the well- pleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); accord, e.g., Bravado Int’l, 655 F. Supp. 2d at 190. “[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a basis for the damages that are sought.” United States v. Hill, No. 12-CV-1413, 2013 WL 474535, at *1 (N.D.N.Y. Feb. 7, 2013)

In the past year, U.S. Bank’s attorneys—Gross Polowy—have repeatedly failed to secure default judgments in similar foreclosure cases before this Court. E.g., U.S. Bank Tr., N.A. v. Dupre, No. 15-CV-558, 2016 WL 5107123 (N.D.N.Y. Sept. 20, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Moody, No. 16-CV-279, 2016 WL 4203514 (N.D.N.Y. Aug. 9, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Pignataro, No. 15-CV-1041, 2016 WL 3647876 (N.D.N.Y. July 1, 2016) (Kahn, J.); cf. Ditech Fin. LLC v. Sterly, No. 15-CV-1455, 2016 WL 7429439, at *4 (N.D.N.Y. Dec. 23, 2016) (denying a motion for default judgment due to a defective notice of pendency); OneWest Bank, N.A. v. Conklin, No. 14-CV-1249, 2015 WL 3646231, at *4 (N.D.N.Y. June 10, 2015) (same). In each case, Gross Polowy’s motion was denied for one of two reasons: either the complaint failed to sufficiently allege subject matter jurisdiction, e.g., Dupre, 2016 WL 5107123, at *2–5, or the motion for default judgment failed to meet the requirements of the Court’s Local Rules, e.g., Moody, 2016 WL 4203514, at *2. Here, both of these failures are present.

The Complaint also includes no allegations concerning U.S. Bank’s ability to proceed under its own citizenship, despite bringing this case on behalf of the “LSF9 Master Participation Trust.” Compl.

While U.S. Bank is the nominal plaintiff in this case, it is longstanding federal law that “court[s] must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980). “Where an agent acts on behalf of a principal, the principal, rather than the agent, has been held to be the real and substantial party to the controversy. As a result, it is the citizenship of the principal—not that of the agent—that controls for diversity purposes.” Hilton Hotels Corp. v. Damornay Antiques, Inc., No. 99-CV-4883, 1999 WL 959371, at *2 (S.D.N.Y. Oct. 20, 1999) (citing Airlines Reporting Corp. v. S&N Travel, Inc., 58 F.3d 857, 862 (2d Cir. 1995)). At issue here is the application of this rule in lawsuits brought by a trustee on behalf of a trust. —3 Gross Polowy should be aware of this rule because they were “foreclosure counsel” for the plaintiff-appellee in Melina, 827 F.3d at 216–17, though in fairness it seems they were replaced by Hogan Lovells for both the subject matter jurisdiction issue and the subsequent appeal, id. at 216; OneWest Bank, N.A. v. Melina, No. 14-CV-5290, 2015 WL 5098635 (E.D.N.Y. Aug. 31, 2015), aff’d, 827 F.3d 214.

In Navarro, the Court held that trustees can be the real parties in controversy—regardless of the type of trust—provided that they “are active trustees whose control over the assets held in their names is real and substantial.” 446 U.S. at 465; see also Carden v. Arkoma Assocs., 494 U.S. 185, 191 (1990) (noting that, if the trustees are “active trustees whose control over the assets held in their names is real and substantial,” they are brought “under the rule, ‘more than 150 years’ old, which permits such trustees ‘to sue in their own right, without regard to the citizenship of the trust beneficiaries’” (quoting Navarro, 446 U.S. at 465–66)). The continued validity of this rule was endorsed by the Court in Americold. 136 S. Ct. at 1016.

If U.S. Bank wishes to proceed in federal court, it must, within thirty (30) days, move to amend its Complaint to address the deficiencies identified in this order. This motion to amend must be prepared in accordance with Local Rule 7.1(a)(4), which establishes the form for such a motion and lists the required papers. With that motion, to resolve the Court’s doubts concerning subject matter jurisdiction, U.S. Bank must also provide its articles of association (along with any other documentation required to establish the location of its main office), the trust instrument for the LSF9 Master Participation Trust,4 and any other documentation required to show that U.S. Bank’s control over the trust assets is real and substantial. Failure to comply with this Memorandum-Decision and Order when moving to amend the Complaint may result in the denial of the motion or sanctions. L.R. 1.1(d).

 

4 In the Dupre case discussed above, U.S. Bank also was instructed to file the trust instrument for the LSF8 Master Participation Trust (presumably another securitization vehicle for mortgage debt) in order to establish subject matter jurisdiction. 2016 WL 5107123, at *2. When it did file the trust instrument, “the text . . . was almost entirely redacted,” and the only visible portion seemed to oppose the notion that U.S. Bank was an active trustee with real and substantial control over the trust assets. Id. at *2, *4. This failure should not be repeated here, and filing documents under seal or with redactions requires advance permission of the Court. L.R. 83.13; see also Lugosh v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006) (describing the standard for restricting public access to judicial documents).

 

Pay Attention! Look at the money trail AFTER the foreclosure sale

My confidence has never been higher that the handling of money after a foreclosure sale will reveal the fraudulent nature of most “foreclosures” initiated not on behalf of the owner of the debt but in spite of the the owner(s) of the debt.

It has long been obvious to me that the money trail is separated from the paper trail practically “at birth” (origination). It is an obvious fact that the owner of the debt is always someone different than the party seeking foreclosure, the alleged servicer of the debt, the alleged trust, and the alleged trustee for a nonexistent trust. When you peek beneath the hood of this scam, you can see it for yourself.

Real case in point: BONY appears as purported trustee of a purported trust. Who did that? The lawyers, not BONY. The foreclosure is allowed and the foreclosure sale takes place. The winning “bid” for the property is $230k.

Here is where it gets real interesting. The check is sent to BONY who supposedly is acting on behalf of the trust, right. Wrong. BONY is acting on behalf of Chase and Bayview loan servicing. How do we know? Because physical possession of the check made payable to BONY was forwarded to Chase, Bayview or both of them. How do we know that? Because Chase and Bayview both endorsed the check made out to BONY depositing the check for credit in a bank account probably at Chase in the name of Bayview.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

===========================

OK so we have the check made out to BONY and TWO endorsements — one by Chase and one by Bayview supposedly — and then an account number that might be a Chase account and might be a Bayview account — or, it might be some other account altogether. So the question who actually received the $230k in an account controlled by them and then, what did they do with it. I suspect that even after the check was deposited “somewhere” that money was forwarded to still other entities or even people.

The bid was $230k and the check was made payable to BONY. But the fact that it wasn’t deposited into any BONY account much less a BONY trust account corroborates what I have been saying for 12 years — that there is no bank account for the trust and the trust does not exist. If the trust existed the handling of the money would look very different OR the participants would be going to jail.

And that means NOW you have evidence that this is the case since BONY obviously refused to do anything with the check, financially, and instead just forwarded it to either Chase or Bayview or perhaps both, using copies and processing through Check 21.

What does this mean? It means that the use of the BONY name was a sham, since the trust didn’t exist, no trust account existed, no assets had ever been entrusted to BONY as trustee and when they received the check they forwarded it to the parties who were pulling the strings even if they too were neither servicers nor owners of the debt.

Even if the trust did exist and there really was a trust officer and there really was a bank account in the name of the trust, BONY failed to treat it as a trust asset.

So either BONY was directly committing breach of fiduciary duty and theft against the alleged trust and the alleged trust beneficiaries OR BONY was complying with the terms of their contract with Chase to rent the BONY name to facilitate the illusion of a trust and to have their name used in foreclosures (as long as they were protected by indemnification by Chase who would pay for any sanctions or judgments against BONY if the case went sideways for them).

That means the foreclosure judgment and sale should be vacated. A nonexistent party cannot receive a remedy, judicially or non-judicially. The assertions made on behalf of the named foreclosing party (the trust represented by BONY “As trustee”) were patently false — unless these entities come up with more fabricated paperwork showing a last minute transfer “from the trust” to Chase, Bayview or both.

The foreclosure is ripe for attack.

Tonight! How to Defend Against a Claim of “Holder” Status to Discredit Standing

“Holder” vs “Agency”

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Tonight I will discuss the central point of of false claims of authority to enforce the note, and inferentially the authority to enforce the mortgage.

In 2008, I called to confront a lawyer about the false claim of being authorized to enforce the note and mortgage, his reply to all my questions was “We’re a holder.”

No matter what I said or asked, that was his answer. He was relying upon a carefully thought out strategy of taking the term “holder” and stretching it to unimaginable lengths. And in that conversation it became clear that he — and the rest of the investment banking industry — were essentially “banking” on a single fact, to wit: that Judges are lawyers who went to law school and for the most part slept through classes on negotiable instruments. He was right.

New Jersey Court Invokes Golden Chicken of Law

Not only did this court get it wrong, it apparently knew it was getting it wrong and so ordered that the case could not be used as precedent.

Steve Mnuchin, now Secretary of our Treasury, was hand picked by the major banks to lead a brand new Federal Savings Bank, called OneWest, which was literally organized over a single weekend to pick up the pieces of IndyMac. By the time of its announced failure in the fall of 2008 IndyMac was a thinly capitalized shell  conduit converted from regular commercial banking to a conduit to support the illusion of securitization.

The important part is that in terms of loans IndyMac literally owned as close to nothing as you could get. OneWest consisted of a group of people who don’t ordinarily invest in banks. But this was irresistible. Over the shrieking objections of FDIC chairwoman who lost her job, OneWest was allowed to claim (a) that it owned the loans that IndyMac and “originated” and (b) to claim 80% of claimed losses which the FDIC paid.

see OneWest “Wins” Again

Thus OneWest claimed losses vastly exceeding the “investment” by certain members of the 1% whom I won’t name here. This enabled them to do 2 things. Claim 80% of the fictitious losses from loans that were not owned by Indymac and the foreclose to collect the entire amount.

Mnuchin was put in charge of “operations.” He ran nothing and basically did as he was told. He knew that the IndyMac residential loan portfolio was at practically zero, he knew that the 80% claim was fictitious, and he knew that neither IndyMac nor OneWest, its supposed successor owned the loans. Nonetheless the “foreclosure king” was entirely happy with foreclosing on homeowners who were caught in a world of spin.

The investors in the OneWest deal split the spoils of war. To be fair they didn’t actually know the truth of the situation. Mnuchin painted a very rosy profit picture that would happen over the short-term and he was right.

As with WAMU, Countrywide et al, the business of IndyMac was largely run through remote vehicles posing as mortgage brokers, originators or just sellers. These entities did exactly what IndyMac told them to do and in so doing IndyMac was doing exactly what it was told to do by the likes of Merrill Lynch, and indirectly Bank of America, Chase, Goldman Sachs, and Citi.

As the descriptive literature on securitization says, all vehicles are remote and special purpose so as to protect everyone else against allegations of wrongdoing. But there was nothing remote about these companies. Yet here in this decision in New Jersey the court predicated its ruling on the proposition that none of the players were liable for any of the unlawful activities of their predecessors.

It’s decisions like this that leave us with the knowledge that we have a long way to go before the courts get curious enough to apply the law as it is — not as the courts and others say it is.

How Do We Know That the Name of the Trustee was Rented?

The practice of paying a fee to a “service provider” to conceal the real nature of a transaction and the real parties in interest has been at the center of all Wall Street schemes that are at variance from conventional loan products.

Virtually all parties who appear in the chain of title or possession in securitization schemes are parties who rent their name to lend credence to the illusion of the loan transaction, loan transfers and foreclosures.

The truth is simply that the debt is never purchased and sold in such circumstances. But paper is created to create the illusion that “the loan” has been purchased and sold. It wasn’t. This illusion is created by simply using the names of the biggest banks in the world.

See Rent-A-Name popular amongst banks

So Payday lenders, the bottom feeders of an already corrupt lending industry, are renting the names of Native American tribes in order to escape rules and laws that apply to lending in general and Payday lenders in particular. They do it because the tribes might be exempt from certain Federal laws and rules. This enables them to charge higher and higher “interest rates” that are in fact gouging American consumers. So the tribal name or jurisdiction is invoked and the lenders pretend that they are not the real parties in interest. More pretender lenders.

This is what happens when we don’t enforce the existing laws and rules in the first place for fear of angering or collapsing the major banks. The prevailing view is that collapsing the TBTF banks — i.e., putting them out of business — is a bad thing no matter how badly they behave.

In the case of REMIC Trusts, big name banks have a tacit and express agreement (which should be pursued in discovery) in which they each will allow their names to be used or rented for a fee. This cross pollination of names, makes it appear that the giant banks are in fact the injured parties in foreclosures. I can say with 100% certainty this is not the case where claims of securitization are involved.

Banks have been quick to point out when faced with judgments for costs, fees or sanctions that they are NOT the foreclosing party and that their name only appears as “Trustee” of a self-proclaimed REMIC Trust. The “party” is the REMIC Trust itself, they say. But when you peek under the hood, the named Trust is just that — only a name. There is no trust and there have been no transactions in which the nonexistent trust’s name has been involved wherein loans have been purchased — or in which anything has been purchased.

Logic dictates and data confirms that the reason for this lack of transactional data is that there were no such transactions. Logic further dictates that the only possible conclusion is that the “investor money” was never entrusted to the falsely named big bank, as trustee and therefore could not have been entrusted to the REMIC Trust. Hence a key element of any valid trust is missing — the active management by a named trustee of assets that were entrusted tot he trustee on behalf of beneficiaries.

So there is no trust and there is court jurisdiction to grant relief in the name of a nonexistent trust. Reading the so-called trust instrument (Pooling and Servicing Agreement) also reveals the absence of trustor/settlor. So not only is the putative trust empty, it also lacks a trustor and trustee. Further inquiry into the PSA and the indenture for the the fake RMBS certificates reveals that the investors are not beneficiaries of a trust because even if the trust existed, the indenture disclaim such an interest in compliance with the buried description in the PSA.

So there is no trust, no trustee, no trustor, and no beneficiary. The investors’ only interest is in the form of a constructive trust, shared with other investors who may or may not be in the same “pool”. The opportunity for commingling money from thousands of investors in multiple pools is just too good for the bank to pass up.

Thus the laws and rules governing the highly complex lending marketplace require only an illusion of compliance instead of the real thing. Court administrators justified their “rocket dockets” by judicial economy and expediency, requiring the courts to hire more judges and personnel. But that is only true if the foreclosure were real. Some courts have required that the original note must be filed with the court upon suit and others require an affidavit describing possession and ownership of the so-called loan documents. Some affidavits must be executed by the lawyers seeking foreclosure on behalf of their clients.

My question is if the trust does not exist except in the minds of certain financiers and there are no trust assets and no active management of them (obviously) then how truthful is it for any lawyer  to execute documents for filing in court on behalf of a client that the lawyer knows or should know does not exist?

 

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