American Bankers: Trustee Role in Securitized Loans

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COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

11.12.10 ABA TRUSTEE whitepaper

 

The responsibilities of the trustee, as set forth in typical asset-backed securities transaction documents, whether a pooling and servicing agreement or an indenture, are narrowly circumscribed as to each role and are traditionally stated to be limited to those expressly accepted by the trustee. These duties are ministerial in nature and do not require the trustee to verify, investigate or monitor the actions of the seller or the servicer (other than in instances of a breach or a default as further described below). Lastly, in tacit recognition that the trustee’s duties are so circumscribed, asset-backed securities transaction documents usually provide for expert input from independent accountants or others in circumstances where information needs to be audited or verified and actions at the direction of specified requisite percentage of holders (contingent upon providing trustees with indemnity sufficient to cover such actions contemplated). Trustees are virtually never required or invited to exercise independent discretion in the transaction documents.
Under Trust Indenture Act-qualified transaction documents, during the continuance of a default, the trustee must exercise its rights and powers under the transaction documents for the benefit of the holders of the asset-backed securities in the same manner that a prudent person would exercise such rights and powers for his or her own benefit. Lastly, these provisions are generally only relevant to the extent the trustee has actual knowledge of a default (or a breach which, to the extent not cured, will mature into an event of default) and specific actions or remedies are clearly prescribed under the transaction documents.

One Response

  1. A Trust without the NOTE hiring a Foreclosure Mill is akin to a Security Guard Mall Cop writing speeding tickets on State Highways. They have no jurisdictional authority…

    Aside from the Borrower & Originator, all other parties associated to the Note get their life-blood from the (PSA) documents creating the Trust. Keep in mind my terminology might not be 100% accurate… – if the Note was never legally Transferred – the Trust has no authority or legitimate reason to claim interest or injury against the Note. Their beef is with the Originator that failed to perform their legal duties to Transfer. The lack of transfer was deliberate not accident.

    The Note cannot be transferred after the Closing Date or in Default.

    Both the Servicer & Foreclosure Mill are hired by the Trust. Both Servicer & Foreclosure Mill (wrongly) presumes there was legal transfer of a Note therefore obligating the borrower to perform. However the Note was never legally transferred.

    How can the Servicer demand payment for something it has not capacity to demand? Chevy Dealerships cannot send statements to consumers who purchased Fords – meaning consumers that did not purchase from them… That Servicer is limited to the requirements of the PSA created by Trust for only those loans legally transferred to it.

    A Foreclosure Mill cannot foreclosure a debt that was never legally transferred to the Trust. If a loan was never legally transferred to the trust, neither the Servicer, Foreclosure Mill, or even Trust has any legal claims against the borrowers because it was the Originator that failed to perform.

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