COURT OF APPEALS
NO. 2015-P-1259
U.S. BANK, N.A., AS TRUSTEE FOR RASC 2006KS9
Plaintiff-Appellant
V.
WENDY BOLLING
For ten years the banks and servicers have had us going down a rabbit hole that they had carefully prepared. By directing the attention of the Court, the homeowner and homeowners’ counsel to the PAPER TRAIL the banks and servicers were assured that in all uncontested cases they would get the foreclosure they wanted and were further assured that in most cases they could fabricate and forge the necessary documents to “fill in the gaps” in the paper trail.
The objective of the mega banks and “Servicers” was to insert parties in the foreclosure process who literally knew nothing. By making each new “successor” servicer increasingly remote, they were assured that the robo-witness at foreclosure could not possibly slip up and tell the truth about the ownership and balance of the loan.
Discovery requests were inevitably directed at the most recent party claiming authority to service the loan when in fact their authority derived from the Trust, which as it turns out, didn’t own the loan and did not represent anyone who did own the loan. Because of the legal presumptions attached to “facially valid” documents the banks and servicers were able to argue through their sham surrogates (“successors”) that any inquiry beyond the paper trail was irrelevant because the the issue had already been decided in the early motions of the case wherein those legal presumptions were used to sustain the implied perspective of the banks, servicers, and their surrogate successors.
Practice Note: Third party discovery is now essential for a successful outcome, to wit: the “previous” servicer should be subpoenaed along with any other predecessors.
Which brings us to the Bolling case. The Courts have been bending over backwards and twisting legal doctrines to “facilitate” the processing of foreclosure which in a manner of speaking is the equivalent of “Let’s give him a fair trail and then hang him.” The outcome has largely been the same even though the appearance of due process and the appearance of a trial has been has been preserved.
Court decisions have essentially been based upon the proposition that the transfer, even if in conflict with the provisions of the “Trust document” (PSA) could be ratified and that therefore these were internal matters for which the homeowners lacked standing to even raise. Thus knowing that the Trust had not paid for the loan, knowing that the Trust was not even named as a party in the paper trail and could not have been party to any transaction or even the receipt of documents the Court nonetheless gave Judgment to the Trust or some party claiming to be an authorized representative of the trust.
Hence, as the Yvanova court said, ratification of a void act means nothing more than the original ‘Nothing” that started the chain. Ratifying a forged instrument does not suddenly create the rights that were never there to begin with; the only ratification that would have any legal effect would be something from the initial “borrower.” And there is another reason why ratification is out of the question and it is stated in both the prospectus to investors and the PSA — neither the investors nor the “Trustee” have any right to know about or even inquire about the loans supposedly held in the “loan pool.” As it turns out there are no loans in THE loan pool that might be owned by the Trust.
After some decisions that questioned whether “void” means void and some stretching to somehow make “void” mean voidable, the Massachusetts Court of Appeals has had enough of these gyrations. If the transaction was void under New York law or for any other reason, then it could not then be used against a homeowner in foreclosure. in this case void really means nothing because in most cases the originator did not fund the loan and none of the “successors” in the paper trail actually engaged in a financial transaction in which the loan was purchased, hence making the endorsements and assignments equally void.
N.Y. Law) incorrectly claimed documented NY Courts’ interpretation of ultra vires transfers by Trustees as voidable. (e.s.) Bassman argued given NY Courts’ inconsistency, that without a party voiding illegal transfers into NY Securitized Trusts, the Court cannot determine that a break in the chain of title to the mortgage exists. However, 6 cases were simply inapposite; none upheld a “voidability” interpretation of attempted ultra vires transfers; and two actually upheld NY EPTL 7-2.4 after Court scrutiny.
“If, as alleged by Hoynoski “upon information and belief,” the mortgage at issue here was subject to a pooling and servicing agreement that involved a trust formed under New York law, the terms of which were contravened by the assignment of the subject mortgage into the trust such that the assignment was void ab initio under New York law, NY CLS EPTL §7-2.4, the Bank arguably would not have acquired good title and would have no superior right to possession herein. This analysis does not implicate third party beneficiary status; rather it involves a direct challenge to a prima facie element of the Bank’s case, namely that it holds good title.” (e.s.)
“the closing date for the Trust was on or about June 14, 2007; the PSA allows only an additional 90 days beyond June 14, 2007 for any loan to have been reviewed and rejected. This assignment … happened on July 28, 2009. The trust was already closed … no evidence of the transfer of the Note. …
“As NY Trust law explicitly voids any transfer of assets in contravention of the Trust’s instrument, this assignment is void as a matter of law. Deutsche Bank … as Trustee … did not, therefore, own the mortgage and therefore, did not have the power to exercise the power of sale in the mortgage. The foreclosure is therefore void. Plaintiff lacks standing to bring this eviction action.” Glaski v. Bank of America, No. F064556 (7/31/13)(e.s.) Cal. 5th App. Dist.), Saldivar v. JPMorgan Chase, 2013 WL 2452699 (Bky. S.D. Texas 6/5/13) and HSBC Bank USA, National Association, et al. v. Marra, No. 2008 CA 000630 NC (Aug. 14, 2013) give weight to the clear language of New York EPTL § 7-2.4; they voided these foreclosures because of ultra vires acts.
Filed under: foreclosure |
The link to the opinion, posted by foreclosurefighter on September 3rd, doesn’t seem to be working anymore.
This one from google scholar is working as of … now:
https://scholar.google.com/scholar_case?case=7527157097725516693&q=US+Bank+v+bolling&hl=en&as_sdt=4,196
The MA Appeals Court still has the case docket available here:
http://www.ma-appellatecourts.org/search_number.php?dno=2015-p-1259&get=Search
My….that didn’t come out quite as we expected. The gymnastics required to get there are almost laughable if it weren’t so serious.
http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/15p1259.pdf
still waiting on word from court ??????????????? still praying the court see what we all see. and hopefully she can see the 6 different notes, and the signature on each note differents then the note before.
then showed her 16 other notes doc sign by same said person, each one was different then any of them. but she did not let me put that in at that time, but she did see it and here it.
Randall Stephens, on June 24, 2016 at 12:14 pm said:
“US Bank
lets see if they want to back to the same supreme court that throw them out already, once. with a get the f out bank. you own shit.
Most importantly, the Appellant appears to argue that Massachusetts Trust law controls. Instead, the existence of Securitized Trusts are beholden to the historic uniqueness of New York Common Trust law and the recent specially-crafted Business Trust law of
Delaware –which require strict “verbatim” adherence by Trusts to their founding documents and determine that ultra vires acts by Trustees are void.
THE FINANCIAL BAR HAS CONSISTENTLY ADVANCED INCORRECT LEGAL THEORY THAT HAS BEEN ACCEPTED BY THE COURT, UNTIL CLOSE SCRUNTINY BY THE APPELLATE COURTS OF THIS COMMONWEATH.
Indeed, over a ten year (or more) period, where the foreclosing entity sought to utilize the “statutory remedy” under G.L. c. 244, §14, courts repeatedly held that such foreclosing entity needed possession of the mortgage only to be a statutory
“mortgagee”, because the statute was addressed to
“mortgagees” not note holders, see Valerio v. U.S. Bank, 716 F.Supp.2d 124 (2010); “The Massachusetts statute governing foreclosure sales is addressed to mortgagees, not note holders, G.L. c. 244, § 14.” This incorrect statement of the law held sway, until this issue was squarely presented to the SJC in Eaton v.
Fed. Nat’l Mortgage Ass’n, 462 Mass 569 (2012), where
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the SJC found that the historical ratio decidendi, and legislative intent was that to meet the statutory definition of the term “mortgagee” there must be a connection to the note and mortgage. Another incorrect “theory” advanced by the financial bar for the better part of a decade was that a borrower “lack standing to challenge an assignment of mortgage”. However, when this issue was squarely presented to the U.S. Court of Appeals for the First Circuit, that Court found that this “theory” could not stand muster where an assignment was “void”, as a Massachusetts mortgagor finds herself in a unique position, that would leave her without any ability to defend the title to her home, if not able to question an entity without contractual standing to utilize an extra judicial remedy,
“As applied here, these considerations raise a potential question as to whether the plaintiff’s standing is jeopardized by the prudential concern that a litigant should not normally be permitted to assert the rights and interests of a third party. With this in mind, several courts have ruled that mortgagors lack standing to challenge mortgage assignments because they are neither parties to nor third-party beneficiaries of the assignments. See, e.g., Oum, 842 F.Supp.2d at 413 (citing Edelkind v. Fairmont Funding, Ltd., 539 F.Supp.2d 449, 453-54 (D.Mass.2008)); Wenzel v. Sand Canyon Corp., 841 F.Supp.2d 463, 477-78 (D.Mass.2012). We think that these cases paint with too broad a brush. It is true that a nonparty who does not benefit from a contract generally
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lacks standing to assert rights under that contract. See, e.g., Almond v. Capital Props., Inc., 212 F.3d 20, 24 & n. 4 (1st Cir.2000); Cumis
Ins. Soc’y, Inc. v. BJ’s Wholesale Club, Inc., 455 Mass. 458, 918 N.E.2d 36, 44 (2009). But a Massachusetts real property mortgagor finds herself in an unusual position because of two key facts. First, as explained below, a Massachusetts mortgagor has a legally cognizable right under state law to ensure that any attempted foreclosure on her home is conducted lawfully. See G.L. c. 183, §21; id. G.L. c. 244, § 14. Second, where (as here) a mortgage contains a power of sale, Massachusetts law permits foreclosure without prior judicial authorization. See Eaton, 969 N.E.2d at 1127. Thus — unlike an ordinary debtor who could challenge an assignment as a defense upon being hauled into court by the assignee seeking to collect on her debt, see 6A C.J.S. Assignments § 132 (2012) — a Massachusetts mortgagor would be deprived of a means to assert her legal protections without having standing to sue. As such, we hold only that Massachusetts mortgagors, under circumstances comparable to those in this case, have standing to challenge a mortgage assignment. Culhane v. Aurora Laon
Services of Nebraska, 708 F. 3d. 282, 290 (2013)
The above reasoning applies with equal force to claims made under a PSA, where the failure to transfer assets under the controlling terms of this Trust Governing Instrument creates a void [not ”voidable”] assignment, and thus represents a challenge “qua mortgagee”. Indeed, Culhane was correctly cited to and relied upon by the Housing Court Judge, where formulating his well reasoned and legally sound decision, related to the
PSA
A. THE SJC IN IBANEZ CLEARLY SPOKE TO THE PRECISE
ISSUE PRESENTED TO THIS COURT REGARDING THE PSA
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Indeed, in U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011), the Supreme Judicial Court specifically addressed requirements that must be established for an entity that is claiming as a “securitized trust” and seeks to utilize the statutory remedy under G.L. c. 244, §14. At p. 649 of Ibanez the SJC makes the prescient observation:
“Like a sale of land itself, the assignment of a mortgage is a conveyance of an interest in land that requires a writing signed by the grantor. See G. L. c. 183, § 3; Saint Patrick’s Religious, Educ. & Charitable Ass’n v. Hale, 227 Mass. 175 , 177 (1917). In a “title theory state” like Massachusetts, a mortgage is a transfer of legal title in a property to secure a debt. See Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 458 Mass. 1 , 6 (2010). ….. Where, as here, mortgage loans are pooled together in a trust and converted into mortgage-backed securities, the underlying promissory notes serve as financial instruments generating a potential income stream for investors, but the mortgages securing these notes are still legal title to someone’s home or farm and must be treated as such.” Ibanez at p. 649
Further, while Ibanez involved Plaintiff Bank Trustees seeking to Quiet Title, the SJC clearly stated that
“There is no question that the relief the plaintiffs sought required them to establish the validity of the foreclosure sales on which their claim to clear title rested.”
Ibanez, at 645
The above standard is precisely what the Plaintiff
Trustee’s burden was before the Housing Court
djabelanger,
I seen in a post last week that you had your day in court on Monday, how did things go. If I remember right you had a pretty good argument, did you gain any ground against the bank.
they get elected to congress, as normal average people, making a 50 to 100,000 a yr. then 2 yrs later, they are multi millioneers. how?
hup- banks, investments, all up front right. ? nope. so go ahead people re-elect all. really . throw all out now
the banks are going down as we speak, great news brits, way to take your country back from the elites. to bad our people just dont care anymore, at lease most of them.
because this is there revolution. and i hope more courty do the same.
like america. a vote for Hillary and bill is a vote for the elites. it is time we throw all out and start over. washington was burned down once before. just maybe it is
Randall Stephens, what the matter, mr. banker. ?
“US Bank and the rest of the dozen or so mega banks and several “servicers” suffered a heavy blow today although it may take a while for the ruling to sink in. The case is US Bank (on behalf of an empty Trust) v Bolling and was decided yesterday by the Massachusetts Court of Appeals.”
The above statements are apparently untrue.
According to a clerk at the Appeals Court of Massachusetts, with whom I just spoke, no opinion has yet been issued. Oral arguments were held on June 9, 2016, and the matter is presently under advisement.
Everybody needs to calm down and at some fruit or something.
kal and anyone else that wants a copy of all doc, in the bolling case, send me your email. at djabelanger@hotmail.com. I will send you all info in pdf. I was the one that sent this to neil.
Reblogged this on UZA – people's courts, forums, & tribunals and commented:
Very pertinent issues raised regarding breach of trust law in foreclosures; thank you; in peace
@ djbelanger
Please post a link to the
U.S. BANK, N.A., AS TRUSTEE FOR RASC 2006KS9
V.
WENDY BOLLING
opinion.
It does not appear to be posted on the Massachusetts Court of Appeals website.
@ foreclosurefighter ,, this is what I found .. http://www.ma-appellatecourts.org/display_docket.php?src=party&dno=2015-P-1259 .. there is no decision listed here … but go all the way down to the bottom ,, this is the Massachusetts appealate courts own system… this is where LexisNexis would get their data ,, today is June 23rd … at the very bottom is the notation “as of 06/15/2016 at 20:00” ,,, the “font of knowledge” is more than a full week behind in what is presented…
Here’s a link to the Court Log:
http://www.ma-appellatecourts.org/display_docket.php?src=party&dno=2015-P-1259
Status: “Argued, Under Advisement”
Neil ,
Just wanted to thank you for hanging in there all these years… There is light at the end of the tunnel.
@ foreclosurefighter ,, I am not an expert on how often LexisNexis updates their databases but I am confident that 1.) Neil knows the difference between a decided and an undecided case and 2.) Cases and decisions aren’t published the instant they are decided.
Give it a few days.
The Bolling case has NOT been decided . Neil is incorrect about this info .
https://www.lexisnexis.com/clients/macourts/
Would like a copy of the opinion attached.
has anyone, seen for real if any settlement that banks do or attorney general get, show me please a cancelled check from anyone that has settled. it is all smoke and mirrors.
THE TRUST AGREEMENT PROVIDES THE ONLY MANNER IN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE TRUST AND ANY ACT INCONTRAVENTION OF THE TRUST AGREEMENT IS VOID
"If, as alleged by Hoynoski “upon information and belief,” the mortgage at issue here was subject to a pooling and servicing agreement that involved a trust formed under New York law, the terms of which were contravened by the assignment of the subject mortgage into the trust such that the assignment was void ab initio under New York law, NY CLS EPTL §7-2.4,>
LAWS ARE MADE BASED ON COMMONSENSE. BASED ON COMMONSENSE, I AGREE WHAT IS MENTIONED ABOVE.
if we all work together for the better, and attorney were to get it, instead of us doing all the work. allot of attorneys dont understand the common sense. that is all it is.
in my case , and i have help many, including glen, its cost me 45000 to teach my lawyer. as in this case in mass, i gave him all what was said from glen, and my research for 6yrs. but still charge me 45000.
its not right.
Thanks to Glenn.
@ djbelanger
Thank you, too!
@ UNLegal
First, assuming a favorable outcome where an assignment is deemed void, various sorts of damages would exist.
Second, an action for a judgment would follow quieting title against the entire world; thereby generally eliminating further adverse claims against the “clear title” of the property.
thank you neil, for looking into this, and putting it up. it is a great case that should be used now for all to see .
Doesn’t the lien (mortgage) retire as well once SOL is reached?
I read somewhere that the lien might remain, even though it can’t be enforced, but may allow reimbursement once the property sells. Is that true? The question, if so, would be reimbursement to whom?
Supposing a note didn’t actually make it into Trust (I know, a stretch on my part), it seems another party (whomever is currently in possession of the ‘original note’) could re-file a new suit in their own name, as in Servicer. That would put it outside the scope of the PSA, and enable a blank-indorsed note to their benefit. And, that seems like it might could go on perpetually until they win. How would we prevent that? Many of us are now approaching the Statute of Limitations, so, wouldn’t that then end another possible suit? Then, at some point, a Quiet Title action to clean it up. I’m not sure if the break in chain of title can be established for the next suit, unless the MERS model is negated. And, assuming whatever Assignments can be reverted or further forwarded.
(all false docs, iac).
I think many of us and many lawyers and even some judges have been saying what is in this post over many years. The courts “generally” did not pay attention or were told to go for the servicer/bankster and not the homeowner. The whole paper trail should be used to train the pup. Worthless, void, fraudulent, forged.
This case does not implicate 3rd path benificary status,
Chicken Shits. ..
🙉🙈🙊
Bravo! Bravo! Bravo!