Trustee for Investors: Powers and Limitations (with livinglies annotations)— Critical in Your Presentation in Court

The complete Trustee powers from a standard Pooling and Servicing agreement:

Section 8.01 Duties of the Trustee. The Trustee, before the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and remains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments {items for discovery} furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement shall examine them to determine whether they are in the form required by this Agreement. The Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order, or other instrument.{Thus the Trustee cannot vouch for any allegation or fact or instruction issued with regard to delinquency, default or foreclosure}

No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct.{This is why the Trustee can and should be named as a potential defendant in a demand letter and defendant in a lawsuit}

Unless an Event of Default known to the Trustee has occurred and is continuing:

(a) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of the duties and obligations specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee, and the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and conforming on their face to the requirements of this Agreement
which it believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;

(b) the Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it is finally proven that the Trustee was negligent in ascertaining the pertinent facts; and

(c) the Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken by it in good faith in accordance with the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Agreement.{authority required from certificate holders — the real holders in due course}

Section 8.02 Certain Matters Affecting the Trustee and the Custodians. Except as otherwise provided in Section 8.01:

(a) the Trustee and the Custodians {note the TWO parties distinguished: Trustees and Custodians} may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties {items for discovery} and neither the Trustee nor the Custodians shall have responsibility to ascertain or confirm the genuineness of any signature of any such party or parties;{this means that nobody from Trustee has authority to sign a sworn affidavit or give sworn testimony in court since they need know nothing in their own personal knowledge, can rely on the statements of others (hearsay) and are not bound by the truth or falsity of any fact.}

(b) the Trustee and the Custodians may consult with counsel, financial advisers or accountants and the advice of any such counsel, financial advisers or accountants and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such Opinion of Counsel; {more items for discovery}

(c) neither the Trustee nor the Custodians shall be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;{so they are admitting that if there is any break in the chain of title, any defect in the securities, negotiability of the instruments, or any payment received that occurred between any party on behalf of the borrower to any party on behalf of the investor, they will not and cannot vouch for authenticity of the alleged default, but they can “say” it. This is the difference between a letter and a sworn document or testimony}

(d) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by the Holders of Certificates evidencing not less than 25% of the Voting Rights allocated to each Class of Certificates;{Discovery item: did the Trustee make any investigation? If yes, what did they find out? If Yes, why did they do so despite the clear wording that says they didn’t have any obligation to investigate and obviously were not expected to perform one? If no, then are they not admitting they don’t know the status of the loan, ownership of the note, enforceability of the mortgage  or existence of the obligation?}

(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, accountants or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder; provided, further, the Trustee shall not be responsible for any act or omission of any Custodian;{Discovery: who were the agents, accountants or attorneys appointed? Who is responsible for the negligence, fraud or malpractice of the agents, accountants or attorneys? If there was such an appointment by this Trustee, how was it done? Where is the document that shows that? How do we know the lawyer in court is actually representing the Trustee, the Investors, the servicer or someone else?}

(f) the Trustee shall not be required to risk or expend its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it;{so how did the Trustee get its authority to proceed? Who gave it the authroity? Who is paying the Trustee, its agents, accountants and attorneys? Where are they getting the money for these payments? Is there any undisclosed third party involved (Champerty and maintenance, — yes it still exists)}

(g) the Trustee shall not be liable for any loss on any investment of funds pursuant to this Agreement;

(h) unless a Responsible Officer of the Trustee has actual knowledge of the occurrence of an Event of Default, the Trustee shall not be deemed to have knowledge of an Event of Default, until a Responsible Officer of the Trustee shall have received written notice thereof; and

  • (i) the Trustee shall be under no obligation to exercise any of the trusts, rights or powers vested in it by this Agreement or to institute, conductor defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificate holders, pursuant to this Agreement, unless such Certificate holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby. {THUS since the Trustee is NEVER deemed to have actual knowledge because the Trustee is required ONLY to rely upon the representations of others without doing any investigation on its own, it may never, in its own name bring a foreclosure action or order the foreclosure sale of any property. The certificate holders, unless they have received information from a source other than the Trustee (hearsay) are getting their information from the Trustee. Thus they are in no better position than the Trustee to know anything. This brings to the forefront the most basic rule of evidence: a witness must take an oath, have perceived something by their own senses, recall what they saw, and be able to communicate it. The real parties are the investors and the borrowers. Everyone else is just a middleman and none of the middlemen are taking responsibility for knowing anything, doing anything or vouching for anything. Only a party who can offer admissible evidence may sue for any relief. In no case we have seen so far, has any party ordered a notice of sale or filed a foreclosure suit with the ability to offer admissible evidence. They are using conventional thinking to get around the rules of evidence. And they don’t want anyone in court who really knows because if they tell the truth, the testimony will be that the parties in court have all been paid in full, received fees that were never disclsoed to the borrower or the investor, and that they have no idea whether the ivnestor has been partially or completely paid through reserves, colalteralization, insurance, credit default swaps or government bailouts. }

Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the statements of the Depositor and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or related document. The Trustee shall not be accountable for the use or application by the Depositor, the Securities Administrator or a Servicer of any funds paid to the Depositor, the Securities Administrator or a Servicer in respect of the Mortgage Loans or deposited in or withdrawn from any Collection Account or the Distribution Account by the Depositor, the Securities Administrator or a Servicer.{This is your authority for saying these people need to be brought to court to account for the money that was paid by the borrower and third parties and to account for the alleged assignemnts or negotiation of notes, whose terms were changed by the very act of pooling and then collateralizing within the Special Purpose Vehicle}

The Trustee shall have no responsibility for filing or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder (unless the Trustee shall have become the successor servicer).{Trustee cannot even vouch that the security still exists, ever existed or whether it is still enforceable}

Section 8.04 Trustee May Own Certificates. The Trustee in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if it were not the Trustee.{Discovery item: did this happen? Where are these certificates now?}

Section 8.05 Trustee’s Fees and Expenses. As compensation for its activities under this Agreement, the Trustee shall be paid its fee by the Securities Administrator from the Securities Administrator’s own funds pursuant to a separate agreement. {Discovery Item} The Trustee and any director, officer, employee, or agent of the Trustee shall be indemnified by the Trust Fund against any loss, liability, or expense (including reasonable attorney’s fees) resulting from any error in any tax or information return prepared by any Servicer or incurred in connection with any claim or legal action relating to (a) this Agreement, (b) the Certificates or the Interest Rate Swap Agreement, or (c) the performance of any of the Trustee’s duties under this Agreement (including any unreimbursed out-of-pocket costs resulting from a servicing transfer), the Certificates or the Interest Rate Swap Agreement, other than any loss, liability, or expense (i) resulting from any breach of any Servicer’s obligations in connection with this Agreement for which the related Servicer has performed its obligation to indemnify the Trustee pursuant to Section 6.05, (ii) resulting from any breach of any Responsible Party’s obligations in connection with this Agreement for which the related Responsible Party has performed its obligations to indemnify the Trustee pursuant to Section 2.03(j) or (iii) incurred because of willful misconduct, bad faith, or negligence in the performance of any of the Trustee’s duties under this Agreement. This indemnity shall survive the termination of this Agreement or the resignation or removal of the Trustee under this Agreement. Without limiting the foregoing, except as otherwise agreed upon in writing by the Depositor and the Trustee, and except for any expense, disbursement, or advance arising from the Trustee’s negligence, bad faith, or willful misconduct, the Trust Fund shall pay or reimburse the Trustee, for all reasonable expenses, disbursements, and advances incurred or made by the Trustee in accordance with this Agreement with respect to:

5 Responses

  1. Is anyone aware of any lawsuits by certificate holders against a MBS Trustee or any factors or considerations that would show that there is a conflict of interest between certificate holders and MBS Trustee?

  2. Darrell,
    I am assuming (for the moment) that they are the same or very similar. However, I have not located my actual pool. I have been searching and will probably get help shortly. Once I find it, I will go over the ones that apply to my loan again to see if they are the same.

    I have not made it to actual litigation yet and I am not a lawyer so I do not know. This is what I will be doing (I will be reviewing this with a lawyer first). I have seen phrases like this one:
    Upon information and belief, blah blah blah and you state what you believe to be. The other side will have to object and say it is not true. However, I will get all of this from Discovery anyway.

    But, it would be much better to get this information BEFORE litigation – or at the very beginning.

    Just my opinion. Learning more every day!

    Dan Edstrom

  3. But in order to introduce this agreement and its terms into evidence, don’t we need the agreement that pertains to our loan or are these agreements standardized and the same no matter who the bank or servicer is?

  4. OK got it – the loan servicer does NOT buy it back. They cannot buy it back. The entity to which they have to buy it back from NO LONGER OWNS IT.

    Dan Edstrom

  5. So, let me get this straight.

    1. The sub-servicer advances money if the borrower misses a payment. The master servicer advances money if they do not receive the payment from the sub-servicer. The Trustee (who is the successor master servicer) advances payments if they do not receive payments from the original master servicer.

    2. The Trustee is charged with pursuing proceedings (foreclosure?) if a default event is not cured – assuming the Trustee has been authorized by 25% or more of the certificate holders.

    So, two different agreements that are in direct conflict with eachother. On one hand the Trustee is not under any obligation or authority to pursue foreclosure, but on the other hand they are sustaining a “loss” by having to “advance” any payments not received from the master servicer in regards to borrowers loan.

    Complete conflict of interest which also explains why the foreclosure is filed in the first place – the Trustee is suffering a financial loss.

    If the servicing company is under obligation to purchase the loan back in the event of a default, this would take the loan out of the pool, thus relieving the Trustee of their obligation. So, do they actually buy it back? I have seen instances where servicing companies are pursuing foreclosure. In my case it looks like the Trustee, however, it is obfuscated. I cannot tell for sure (yet). It may be the servicing company that is foreclosing.

    Dan Edstrom

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