The Court, possibly because of the pleadings and briefs refers to the Trust as “US Bank” — a complete misnomer that reveals a completely incorrect premise. Despite the clear allegation of the existence of the Trust — proffered by the Trust itself — the Courts are seeing these cases as “Bank v Homeowner” rather than “Trust v Homeowner.” The record in this case and most other cases clearly shows that such a premise is destructive to the rights of the homeowner and assumes the corollary, to wit: that the “Bank” loaned money or purchased the loan from a party who owned the loan — a narrative that is completely defeated by the Court rulings in this case.
THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
It is stunning how lower courts are issuing rulings and decisions that ignore or even defy higher court rulings that give them no choice but to follow the law. These courts are acting ultra vires in open defiance of the senior authority of a higher court. It is happening in rescission cases and it is happening in void assignment cases, like this one.
*
This case focuses on a void assignment or the absence of an assignment. Keshtgar alleged that “the bank” had no authority to initiate foreclosure because the assignment was void or absent. THAT was the first mistake committed by the California appeals court, to wit: the initiating party was a trust, not a bank. This appeals court completely missed the point when they started out from an incorrect premise. US Bank is only the Trustee of a Trust. And upon further examination the Trust never operated in any fashion, never purchased any loans and never had any books of record because it never did any business.
*
The absence of an assignment is alleged because the assignment was void, fabricated, backdated and forged purportedly naming the Trust as an assignee means that the Trust neither purchased nor received the alleged loan. Courts continually ignore the obvious consequences of this defect: that the initiator of the foreclosure is claiming rights as a beneficiary when it had no rights as a beneficiary under the deed of trust.
*
The Court, possibly because of the pleadings and briefs refers to the Trust as “US Bank” — a complete misnomer that reveals a completely incorrect premise. Despite the clear allegation of the existence of the Trust — proffered by the Trust itself — the Courts are seeing these cases as “Bank v Homeowner.” The record in this case and most other cases clearly shows that such a premise is destructive to the rights of the homeowner and assumes the corollary, to wit: that the “Bank” loaned money or purchased the loan from a party who owned the loan — a narrative that is completely defeated by the Courts in this case.
*
There really appears to be no question that the assignment was void or absent. The inescapable conclusion is that (a) the assignor still retains the rights (whatever they might be) to collect or enforce the alleged “loan documents” or (b) the assignor had no rights to convey. In the context of an admission that the ink on the paper proclaiming itself to be an assignment is “nothing” (void) there is no conclusion, legal or otherwise, but that US Bank had nothing to do with this loan and neither did the Trust.
*
Bucking the California Supreme Court, this appellate court states that Yvanova has “no bearing on this case.” In essence they are ruling that the Cal. Supreme Court was committing error when it said that Yvanova DID have a bearing on this case when it remanded the case to the lower court of appeal with instructions to reconsider in light of the Yvanova decision.
*
One mistake committed by Keshtgar was asking for quiet title. The fact that the MORTGAGE is voidable or unenforceable is generally insufficient grounds for declaring it void and removing it from the chain of title. I unfortunately contributed to the misconception regarding quiet title, but after years of research and analysis I have concluded that (a) quiet title is not an available remedy against the mortgage unless you have grounds to declare it void and (b) my survey of hundreds of cases indicates that judges are resistant to that remedy. BUT a similar action for cancellation of instrument could be directed against the an assignment, substitution of trustee on deed of trust, notice of default and notice of sale.
*
Because there was an admission by Keshtgar that the loan was “non-performing” and because the court assumed that US Bank was a lender or proper successor to the lender, the question of what role the Trust plays was not explored at all. The courts are making the erroneous assumption that (a) there was a real loan contract between the parties who appear on the note and mortgage, (b) that the loan was funded by the originator and that the homeowner is in default of the obligations set forth on the note and mortgage. They completely discount any examination of whether the note is a valid instrument when it names not the actual lender but a third party who is also serving as a conduit. In an effort to prevent homeowners from getting windfalls, they are delivering the true windfalls to the servicers who are behind the initiation of virtually every foreclosure.
*
The problem is both legal and perceptual. By failing to see that each case is “Trust v Homeowner” the Courts are failing to consider that the case is between a private entity and a private person. By seeing the cases as “institution v private person” they are giving far too much credence to what the Banks, up until now, are selling in the courts.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
Filed under: foreclosure | Tagged: foreclosure defense, foreclosure offense, fraud, Keshtgar, MERS, quiet title, rescission, securitization, trustee, void assignment, Yvanova |
Yeah, been here a minute. Battle scars to prove it, LOL Jelly Beans above is too. She’s been around since 2006. Scrappy fighter…another New Century casualty.
You are right, I have dozens of documents that fail the test, from inception to today. At the end of the day, the judges are allowing it and the lawyers I found, have been complicit in this, by counterfeiting documents, we can prove it. They had the stupidity to spell the signors name incorrectly. Dah, how do you forget your own name? You don’t! Let us try and bring these types of documents into court…we would be arrested and charged, immediately!
Like you, I am still standing, for the moment. We all have the evidence we need…some of these judges are rewriting the law and damaging the deed offices for a hundred years to come, with no concern. Just my opinion: District Court judges, given their lack of knowledge and sophistication, have no business hearing these cases.
Poppy, New Century was the listed originator on my mortgage as well.
I started there and had a servicer who did not know who had the note or where my payments were going. The loan servicer assigned it to a trust in 2011, more than half a decade after the PSA’s closing date and three years after all New Century’s assets were liquidated. After years of litigation with and without lawyers (I hired a few) one lawyer I interviewed told me my previous lawyers were f-ing idiots who screwed up my situation more (snatched defeat from the jaws of victory) and that it was useless anyway because of the judges in my county. That was in 2014. I’m still here, in my home.
Anyone who fights foreclosure faces this kind of discouragement over and over.
I did not know you were a veteran in the foreclosure war.
Hang in there.
And you can cite all the penal code (criminal codes) you want, but unless an Attorney General or County District Attorney files something using those codes, the criminals will continue.
The courts will ignore you if you use those codes. The District Attorney’s office or AGs can use them, but we cannot.
I’m afraid writing to the California State AG does not now go anywhere. I have provided all sorts of evidence and facts over the course of 8+ years. She did push the Calif. HOBR and she wrote an amicus for Yvanova….but not much else. She has not gone after the bottom feeder law firm(s) I’ve been dealing with, despite all the proof of their illegal acts.
As to most of the above discussions, to me, it seems of little avail.
I’ve even had a judge come out of chambers and assist the opposing attorney with writing his juror instructions for an eviction trial. He did not help the pro se, but he helped a veteran attorney (over 30 years practicing in Calif.). This same judge told me we were not going to use UCC, since it was federal. I actually was using the California version of the UCC codes!
Then I’ve had a bankruptcy judge say that he
“wanted another court to decide my situation” and dismissed my bankruptcy.
They put up roadblocks at every step of the way! They are not following the laws.
Yes, you are right…what a scam! The history is long and I too, paid for 2 lawyers when I could afford it and they knew nothing about this stuff and burned up everything. That’s how I ended up going pro se. At the end of the day it is not about the house, really. It is the point. If I do nothing they win, so at least I can hold my head high and caused them a real pain in their ass.
Like you I had to learn laws, Statutes, District Court procedures, Federal Court procedures, filings, Motions, rules, time frames, etc…what an experience some good for me, actually! Never again.
Right now I am on appeal…we’ll just see what happens. This case started with New Century and have been up in Delaware for years now. Did get some good discovery up there though. Appreciate your wisdom and thoughts, we need all the help we can muster in this “garbage pit” of a justice system! Thanks
Poppy,
Yes, I get it. I was in the trenches for years. Forged signatures, backdated documents, known robo-signers, void assignment, you name it, it was all in the documentation for my loan and done by loan servicer attorneys and the loan originator. There was a lot more as well, but even my own attorney (when I could afford one) failed to comprehend all of it. I had excellent, respected, and highly credentialed expert witnesses, their declarations and affidavits and they could show up in court. Worse yet, the judges believed it did not matter–none of it.
Things are getting better (slowly). It depends on which state you are in, if you end up in state court, federal court, or bankruptcy court.
How fast can you learn what you need to learn? It is a full-time job to learn the ropes. Just learning the court rules is daunting. Can you afford a good lawyer? Can you find one who actually knows this stuff? Can you afford to take your case to appeals court? Lower courts count on people not being able to go higher and often just do what they like.
I finally could not keep the litigation going and spent about two years getting a loan modification through. I re-sent the same applications and documentation too many times to count. The servicer lied and put me off, saying my application was incomplete, when it was far BEYOND what HUD said was required. I was turned down and had to appeal. I lost the appeal. I had a change in financial circumstances. I re-applied and continued pounding away.
I know all of this is confusing. You just got dumped in Oz and nothing you thought you knew makes sense there. I do know how you feel. I’m recovering from years of it. I am sorry for your situation. Only you can decide if staying to fight or cutting your losses and moving on is right for you. Both are hard.
It sounds to me like US BANK is the TRUSTEE for the holders of the mortgage backed trust that supposedly bought the NOTE. The NOTE should have been endorsed/indorsed from the loan originator to US BANK NA as the trustee, or in blank. It is usually indorsed in blank and undated.
US Bank probably did NOT buy your note at a public auction. If you have already gone though foreclosure and sale of your home, US BANK would have bought your home with a “credit bid” and then it would start the process to evict you. It instead sounds like it is trying to foreclose.
Changing from one loan servicer to another is another way to mess with you. It also makes it harder to know who to contact if you are trying to get a loan modification.
What I did and would do again:
RECORD ALL CONVERSATIONS IF YOU TALK TO US BANK OR OCWEN OR WHOEVER SAYS THEY ARE SERVICING YOUR LOAN. They usually agree to recording because they ask if they can record YOU.
Start a notebook listing the dates, times, who you spoke with, and a synopsis of the conversation. Do this with all written correspondence as well. You need to have an easy to read history.
Make copies of all correspondence–scan into your computer if you can. Send everything certified and scan or copy everything before mailing.
I had to send a QWR (Qualified Written Request) to find out who purportedly owned the note and mortgage and to verify who the loan servicer was. I also believed there were probably mistakes in the billing and charges and I asked for an accounting. Don’t send a massive “mother of all” type QWR. Make it simple and short. One page should do it. You have the right to ask who you owe, how much, who your loan servicer is, who owns your note, and if you suspect incorrect charges, an accounting.
A loan modification is a less painful route unless you just cannot qualify no matter what. I will not say it is easy though, just not as hard as litigation. I have been on the litigation trail. It is a rough ride but I applaud anyone who has the guts to at least try. There would have been no progress in our favor in the courts is everyone had bowed out.
You must fortify your body and mind for this. Walk, even just five minutes, and eat the healthiest foods you can muster up. Get emotional and spiritual support. I hope and pray the best for you. We all face stressful times. Be a survivor. The criminals do not deserve a free house from you.
Poppy, as trustee for MANY bogus trusts, US Bank NA, is often the foreclosing party and usually gets the property on a “CREDIT BID” at the courthouse foreclosure sale. It is not there to purchase notes. It is supposed to already own or hold the note when it makes a credit bid.
As the trustee for these bogus trusts, US Bank has closed its eyes to everything having to do with the foreclosures, sales, and the aftermath. Everything is done by the loan servicers and their associates.
When US Bank was the focus of suits to force it to maintain the many homes it has taken in foreclosure, which have caused blighted neighborhoods in Los Angeles, it insisted it had no duty because:
“other companies were responsible for servicing the loans, including maintaining the properties and complying with city ordinances. The role of U.S. Bank is limited, it says, because it held title to the assets on behalf of the trusts and for the benefit of the investors in the mortgage-backed security.” Worse yet, a California judge overseeing the city of Los Angeles’ public nuisance suit against U.S. Bancorp refused to find that the bank has a duty to repair the foreclosed homes it owns.
___________
In non-judicial foreclosure states, a trip to the county recorder’s office shows the same recorded documents over and over as part of the foreclosure routine.
The following is what I found when I examined hundreds of records at a few county recorder’s offices:
1, An ASSIGNMENT OF THE DEED OF TRUST is recorded, assigning the DEED OF TRUST or TRUST DEED (sometimes with the NOTE) to a mortgage backed trust with a bank (such as US Bank N.A.) as trustee for the holders of the trust.
NOTE: These are notorious for being signed by unauthorized signers, often referred to as robo-signers. They are usually fraudulent documents and are recorded illegally and past the legal closing dates allowed for assigning mortgages to the trusts, making the assignments VOID. Good luck getting a judge to listen.
Strangely, (just kidding, not strange at all, considering the banks’ power and their “too big to fail” status) the only time I have ever seen such an assignment into these bogus trusts, is when there is an impending foreclosure. The recorder’s office should be brimming with assignments that occurred within months of each mortgage’s origination in order to legally become part of the mortgage backed “REMIC” trusts in compliance with the trust laws and IRS regulations.
REMIC is short for “Real Estate Mortgage Investment Conduit” Definition: A complex pool of mortgage securities created for the purpose of acquiring collateral. The mortgage base is divided into varying classes of securities backed by mortgages with different maturities and coupons and enjoy tax benefits if the IRS and TRUST rules and legal regulation and statutes are followed.
From what I have seen, they are NOT followed. They are empty–no mortgages are assigned and recorded as legally required.
2, A SUBSTITUTION OF TRUSTEE is recorded, changing the original “deed of trust” trustee, to another trustee, who is often an entity owned by a law firm that specializes in foreclosure and is foreclosure friendly with the LOAN SERVICER and other involved entities. The “deed of trust trustees” are supposed to follow the law and be impartial parties with no prejudice for or against the borrower or the “lender/beneficiary”. Instead, they bend over backwards to follow the foreclosure and sale instructions by the loan SERVICER.
3, The NOTICE OF DEFAULT “NOD” is recorded by the newly substituted “deed of trust trustee” and the clock begins ticking until a foreclosure sale can take place.
4, After the required number of days, a NOTICE OF TRUSTEE’S SALE “NOTS” is recorded, stating the place and date of the sale and using whatever wording and details the state requires.
5, In most cases, a TRUSTEE’S DEED UPON SALE is recorded because the homeowners simply lost their homes in the public foreclosure auctions.
OR, I have found that the records can vary–
A DEED IN LIEU is recorded if the homeowner voluntarily signs their home over to the bank.
OR, A DEED is recorded, if a short sale was made, or if the homeowner sold the home.
OR, A RESCISSION OF NOTICE OF DEFAULT is recorded if the homeowner got a loan modification (rare).
OR, A NOTICE OF LIS PENDENS is recorded because the homeowner is suing the foreclosing entity/s (extremely rare).
OR, A PETITION IN BANKRUPTCY if a bankruptcy stay is recorded. Usually a stay release to allow the sale follows that, and the foreclosure sale proceeds and a TRUSTEE’S DEED UPON SALE recording follows unless the homeowner can accomplish one of the previous alternatives.
___________
The last sad event is all too often the homeowners leaving their homes before the embarrassment and indignity of enduring eviction by UNLAWFUL DETAINER (UD) or a sheriff or police officer making them leave.
___________
Many people who thought they were in the process of getting a loan modification were evicted by surprise by a law enforcement officer knocking on the door, because the proper notices were not given to them and the loan servicer lied to them. I have met people who did not know foreclosure documents were recorded while they were making trial loan modification payments and were desperately re-sending modification documents the servicer/bank says it never got. (Do foreclosing trustee’s lie about serving notices? Do foreclosing attorneys ever lie or falsify documents or use false documents? For your answer, Google the following: Steven J. Baum, Butler & Hosch & foreclosure mill shut down.)
_______
I’m sorry if I sound shell-shocked or cynical, but almost six years of war with no basic training can do that. I never had the resources to get good representation. I had to decide to represent myself or just give up. I felt like I was a nine-year-old, throwing rocks at armored battle tanks.
Even when the lower courts know you could turn their decisions around in appeals court, they already know most people cannot make it through that process or pay for the process.
Unfortunately, even now, most attorneys don’t have a clue when it comes to these cases. During 2010 through 2012 I remember lawyers being surprised that bank or foreclosure attorneys would risk their licenses by lying in court or using bogus documents in court. They were actually naive about this–could not fathom it. By 2013, they were just beginning to believe it.
Some lawyers take fees and botch things up or just buy a little more time before the foreclosure sale and eviction takes place, or refuse to take these cases and just say “No way.”
Many lawyers who enter the fray with good intentions have to learn on the fly with a lot of losses, enough for them to get out because the water is just too hot. It is NOT a fair fight.
After reading a few success stories, some lawyers’ clients think that is what will happen in their cases, even if they cannot afford to appeal bad lower court decisions. They don’t understand how dirty the game is. The war chests to fight these cases have to be huge enough to cover appeals and even going to supreme court. If people have that much money on hand, they don’t get behind on their mortgage payments. Banks know this. Lawyers don’t usually have unlimited budgets and time to take these cases pro bono and the odds of winning are low enough to make taking them on contingency basis extremely unattractive.
I fought. I couldn’t help myself. My home is worth fighting for–against terrible odds. I saved and scraped and was injured while working to build the house with my own hands. It took years of work, sacrifice, and money. I couldn’t just let them take it without a fight. I felt my blood was in the earth and boards.
I never expected a “free” house and I’m certain the criminals don’t deserve a free house, even if they expect it.
taraismine:
I have been to several courthouse auctions, multiple hearings with a clerk (also heart wrenching), bankruptcy courts (the volumes of folks, most over 45-50 y/o), District, Federal Courts….unbelievable to me, this goes on and I have witnessed elderly people with loans of under $2,500. being thrown out of their homes, for lines of credit to do work on the house!
To the point of US Bank, NA…I have a file from the Pender County Courthouse, NC, with US Bank as the purchaser of my “alleged” note? Now, they have hired a law firm to foreclose and collect on the original trust with a 2007 note, with assignments in 2012 (all robo signers). Then to add to the mix, my original HUD statement has been copied and submitted multiple times, with signatures that are all different and dollar amounts that vary? How can ONE (1) original produce all these different signatures and dollar amounts? And how is it US Bank as a trustee, buys this “alleged” note years after the trust has closed and now claims ownership? Not seeing this. Oh and the “alleged” servicer Ocwen is in the middle….now they have dropped Ocwen from the original Motion/Order with no paperwork to amend! Really? This is the fourth time too. Three other claims for this “alleged” case have been dismissed, this is number 4…same case, same players, same claim for damages/losses. Anyone here get this?
Poppy, I’ve never seen US Bank buy “notes” at a foreclosure sale. You should witness a courthouse foreclosure sale event, heart-rending as it is.
You nailed that perfectly Neil:
“By failing to see that each case is “Trust v Homeowner” the Courts are failing to consider that the case is between a private entity and a private person.”
I faced this particular problem for more than five years of fighting “U.S. Bank N.A. as Trustee for holders” of an empty, fraudulently set up, TRUST.
The bank is always right, ESPECIALLY against a pro se litigant.
Actually, the LOAN SERVICER, sends a lawyer and US BANK as trustee for the holders of the trust and pretends to not even know about the foreclosure or the litigation. I know. I wrote to the “trustee” and talked to the trustee for the trust at US Bank by phone. US BANK confirmed their “we’re not involved” policy in their letters and by phone. I submitted the letters as exhibits. The court ignored them.
The court could not imagine a lawyer working for someone who never hired him and I was pro se, which is like walking into court naked because you cannot afford clothes. In the court’s eyes, my credibility was zero. I doubt the judge even glanced at anything I filed or my exhibits.
The loan servicer, instead of the supposed lender, signed the assignment of the mortgage to the empty trust. The court ignored that.
I hung on for for years and finally got a loan modification with a huge balloon payment due after a few decades of payments. During the loan modification process (about two years) the servicer waited until just hours before the advertised sale each month to tell the foreclosing trustee and its agent to cancel the sale of my home. I still have PTSD from years of that treatment.
____
I still don’t know who the “HOLDERS” of the trust are–the unnamed bondholders with interests in CUSIP numbered parts of the trust. I learned the cusip numbers and which of them were paid off. After they were paid off they were advertised for sale by a Cayman Island dealer. Interesting–not surprising.
If they were paid off (by insurance or whatever) they have no value, unless they are part of a money laundering scheme. When will the IRS or the SEC lift the trust’s skirts? Oh…I keep forgetting, those skirts are too big to lift. They are on the Banks’ fat bodies.
§ 14-119. Forgery of notes, checks, and other securities; counterfeiting of instruments.
(a) It is unlawful for any person to forge or counterfeit any instrument, or possess any counterfeit instrument, with the intent to injure or defraud any person, financial institution, or governmental unit. Any person in violation of this subsection is guilty of a Class I felony.
(b) Any person who transports or possesses five or more counterfeit instruments with the intent to injure or defraud any person, financial institution, or governmental unit is guilty of a Class G felony.
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_14/Article_21.html
A person commits the crime of tampering with evidence when he or she knowingly:
alters, conceals, falsifies, or destroys
any record, document, or tangible object
with the intent to interfere with an investigation, possible investigation, or other proceeding by the federal government.
(18 U.S.C. § 1519.)
This crime includes making false entries in records or doctoring documents, such as by “cooking the books” of a business to hide illegal activity or avoid taxes or other required payments.
Tampering with evidence also includes destroying or altering documents or things “in contemplation of” an investigation or other proceeding that may occur in the future.
il, others
what is the difference in a banks claiming rescission of all the crap they bought, and found out that no trust is real,no mortgages were transferred to any trust
and the homeowners stating the same. ?
https://www.orrick.com/Events-and-Publications/Documents/3606.pdf
COMPLAINT FOR RESCISSION AND
DAMAGES AND DEMAND FOR JURY
TRIAL
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT
FEDERAL HOME LOAN BANK OF
BOSTON,
Plaintiff,
v.
ALLY FINANCIAL, INC. F/ICJA GMAC
LLC; BANC OF AMERICA FUNDING
CORPORATION; BANK OF AMERICA
CORPORATION; BANK OF AMERICA,
NATIONAL ASSOCIATION; BARCLAYS
CAPITAL INC.; BARRY J. O’BRIEN;
BCAP LLC; BEAR STEARNS ASSET
BACKED SECURITIES I LLC; CAPITAL
ONE FINANCIAL CORPORATION;
CAPITAL ONE, NATIONAL
ASSOCIATION; CI-MVY CHASE
FUNDING LLC; CHRISTOPHER M.
O’MEARA; CITICORP MORTGAGE
SECURITIES, INC.; CITIGROUP
FINANCIAL PRODUCTS, INC.;
CITIGROUP GLOBAL MARKETS INC.;
CITIGROUP GLOBAL MARKETS
REALTY CORP.; CITIGROUP INC.;
CITIGROUP MORTGAGE LOAN TRUST
INC.; CITIMORTGAGE, INC.;
COUNTRYWIDE FINANCIAL
CORPORATION; COUNTRYWIDE HOME
LOANS, INC.; COUNTRYWIDE
SECURITIES CORP.; CREDIT SUISSE
(USA), INC.; CREDIT SUISSE FIRST
BOSTON MORTGAGE SECURITIES
CORP.; CREDIT SUISSE HOLDINGS
(USA), INC.; CREDIT SUISSE
SECURITIES (USA) LLC; CWALT, INC.;
CW/VIBS, INC.; DB STRUCTURED
PRODUCTS, INC.; DB U.S. FINANCIAL
MARKET HOLDING CORPORATION;
DEUTSCHE ALT-A SECURITIES, INC.;
Civil Action No.: 11 – 1533
COMPLAINT FOR RESCISSION AND
DAMAGES AND DEMAND FOR JURY
TRIAL
djabelanger, on August 11, 2016 at 10:11 am said:
On January 17, 2002, the State of Delaware enacted the Asset-Backed Securities Facilitation Act, 6 Del. C. § 2703A (the “ABSFA”). The ABSFA effectively creates a safe harbour under Delaware state law for determining what constitutes a true sale in securitisation transactions. –
The ABSFA first provides that “[a]ny property, assets or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets or rights of the transferor.”[1] Given the foregoing provision, to the extent Delaware law applies, the traditional legal criteria used in determining what constitutes a true sale in the context of a securitisation is intended to be irrelevant.The ABSFA further states that “[a] transferor in the securitization transaction … to the extent the issue is governed by Delaware law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the transferor any property, assets or rights purported to be transferred, in whole or in part, by the transferor.”[2] The ABSFA also provides that “[i]n the event of a bankruptcy, receivership or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed part of the transferor’s property, assets, rights or estate.”[3] The foregoing provisions facilitate reaching the conclusion that a true sale exists in the context of a securitisation transaction where Delaware law applies.A number of issues exist that may preclude the ABSFA’s application to a particular securitisation transaction, including whether federal law will preempt the ABSFA in making a true sale determination and whether Delaware law generally, and the ABSFA in particular, will apply to a transfer in a securitisation transaction. Although not yet judicially tested, the ABSFA is nevertheless a reason to seriously consider whether the parties to a securitisation transaction should choose for Delaware law to apply to their contractual relations – See more at
The UCC Opinion
Because perfection of a secured interest in fixtures, etc., is obtained by filing a financing statement in the domicile of the LLC or DST, an opinion as to the enforceability of the financing statement is often requested and given. This opinion requires review of the UCC Financing Statement and application of the Delaware Uniform Commercial Code — Secured Transactions, 6 Del. C. §§ 9-101 et seq.
EXAMPLE:
Insofar as Article 9 of the Uniform Commercial Code as in effect in the State of Delaware on the date hereof (the “Delaware UCC’) is applicable (without regard to conflict of laws principles), upon the filing of each Financing Statement with the Division, the Lender will have a perfected security interest in each Borrower’s rights in that portion of the collateral (as defined in the applicable Deed of Trust, Security Agreement and Fixture Filing, hereinafter the “Agreement’) described in the Financing Statement that may be perfected by the filing of a UCC financing statement with the Division (the “Filing Collateral’) and the proceeds (as defined in Section 9-102 (a)(64) of the Delaware UCC) thereof
The UCC opinion expressed above is limited to the State of Delaware and is subject to a number of additional assumptions, qualifications, limitations and exceptions, including the following: (1) that Borrower has sufficient rights to the Filing Collateral and has received sufficient value and consideration in connection with the security interest granted; and (2) that each applicable security agreement and financing statement reasonably identifies the filing collateral.
On January 17, 2002, the State of Delaware enacted the Asset-Backed Securities Facilitation Act, 6 Del. C. § 2703A (the “ABSFA”). The ABSFA effectively creates a safe harbour under Delaware state law for determining what constitutes a true sale in securitisation transactions.
The ABSFA first provides that “[a]ny property, assets or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets or rights of the transferor.”[1] Given the foregoing provision, to the extent Delaware law applies, the traditional legal criteria used in determining what constitutes a true sale in the context of a securitisation is intended to be irrelevant.The ABSFA further states that “[a] transferor in the securitization transaction … to the extent the issue is governed by Delaware law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the transferor any property, assets or rights purported to be transferred, in whole or in part, by the transferor.”[2] The ABSFA also provides that “[i]n the event of a bankruptcy, receivership or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed part of the transferor’s property, assets, rights or estate.”[3] The foregoing provisions facilitate reaching the conclusion that a true sale exists in the context of a securitisation transaction where Delaware law applies.A number of issues exist that may preclude the ABSFA’s application to a particular securitisation transaction, including whether federal law will preempt the ABSFA in making a true sale determination and whether Delaware law generally, and the ABSFA in particular, will apply to a transfer in a securitisation transaction. Although not yet judicially tested, the ABSFA is nevertheless a reason to seriously consider whether the parties to a securitisation transaction should choose for Delaware law to apply to their contractual relations
While Delaware LLCs and DSTs may be organized for any lawful purpose (except some insurance-related purposes as to LLCs) lenders and underwriters often require that the LLC or DST be restricted to having only a single purpose. Thus SPE provisions are imposed to set limitations on how business is conducted. Some common SPE provisions include:
• Prohibitions against the acquisition or ownership of any material asset other than (i) the property that is the subject of the proposed transaction (the “Property”), and (ii) such incidental personal property as may be necessary for the operation of the Property.
• Prohibitions or restrictions on the company’s ability to take on additional debt.
• Requirements that the company at all times maintain its separate existence and good standing and refrain from certain types of amendments to its governing documents, fail to preserve its existence as an entity duly organized.
• Restrictions or outright prohibition of the company acquiring any subsidiaries, merging with or consolidating with another entity, or commingling any of its assets with those of any other entity, including parent companies and affiliates.
• Requirements that the company pay its own debts from its own assets and maintain its own separate books and records.
• Provisions forbidding the company from serving as guarantor for another entity’s debts or obligations.37
,
On January 17, 2002, the State of Delaware enacted the Asset-Backed Securities Facilitation Act, 6 Del. C. § 2703A (the “ABSFA”). The ABSFA effectively creates a safe harbour under Delaware state law for determining what constitutes a true sale in securitisation transactions.
The ABSFA first provides that “[a]ny property, assets or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets or rights of the transferor.”[1] Given the foregoing provision, to the extent Delaware law applies, the traditional legal criteria used in determining what constitutes a true sale in the context of a securitisation is intended to be irrelevant.The ABSFA further states that “[a] transferor in the securitization transaction … to the extent the issue is governed by Delaware law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the transferor any property, assets or rights purported to be transferred, in whole or in part, by the transferor.”[2] The ABSFA also provides that “[i]n the event of a bankruptcy, receivership or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed part of the transferor’s property, assets, rights or estate.”[3] The foregoing provisions facilitate reaching the conclusion that a true sale exists in the context of a securitisation transaction where Delaware law applies.A number of issues exist that may preclude the ABSFA’s application to a particular securitisation transaction, including whether federal law will preempt the ABSFA in making a true sale determination and whether Delaware law generally, and the ABSFA in particular, will apply to a transfer in a securitisation transaction. Although not yet judicially tested, the ABSFA is nevertheless a reason to seriously consider whether the parties to a securitisation transaction should choose for Delaware law to apply to their contractual relations
While Delaware LLCs and DSTs may be organized for any lawful purpose (except some insurance-related purposes as to LLCs) lenders and underwriters often require that the LLC or DST be restricted to having only a single purpose. Thus SPE provisions are imposed to set limitations on how business is conducted. Some common SPE provisions include:
• Prohibitions against the acquisition or ownership of any material asset other than (i) the property that is the subject of the proposed transaction (the “Property”), and (ii) such incidental personal property as may be necessary for the operation of the Property.
• Prohibitions or restrictions on the company’s ability to take on additional debt.
• Requirements that the company at all times maintain its separate existence and good standing and refrain from certain types of amendments to its governing documents, fail to preserve its existence as an entity duly organized.
• Restrictions or outright prohibition of the company acquiring any subsidiaries, merging with or consolidating with another entity, or commingling any of its assets with those of any other entity, including parent companies and affiliates.
• Requirements that the company pay its own debts from its own assets and maintain its own separate books and records.
• Provisions forbidding the company from serving as guarantor for another entity’s debts or obligations.37
neil, others
what is the difference in a banks claiming rescission of all the crap they bought, and found out that no trust is real,no mortgages were transferred to any trust
and the homeowners stating the same. ?
https://www.orrick.com/Events-and-Publications/Documents/3606.pdf
COMPLAINT FOR RESCISSION AND
DAMAGES AND DEMAND FOR JURY
TRIAL
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT
FEDERAL HOME LOAN BANK OF
BOSTON,
Plaintiff,
v.
ALLY FINANCIAL, INC. F/ICJA GMAC
LLC; BANC OF AMERICA FUNDING
CORPORATION; BANK OF AMERICA
CORPORATION; BANK OF AMERICA,
NATIONAL ASSOCIATION; BARCLAYS
CAPITAL INC.; BARRY J. O’BRIEN;
BCAP LLC; BEAR STEARNS ASSET
BACKED SECURITIES I LLC; CAPITAL
ONE FINANCIAL CORPORATION;
CAPITAL ONE, NATIONAL
ASSOCIATION; CI-MVY CHASE
FUNDING LLC; CHRISTOPHER M.
O’MEARA; CITICORP MORTGAGE
SECURITIES, INC.; CITIGROUP
FINANCIAL PRODUCTS, INC.;
CITIGROUP GLOBAL MARKETS INC.;
CITIGROUP GLOBAL MARKETS
REALTY CORP.; CITIGROUP INC.;
CITIGROUP MORTGAGE LOAN TRUST
INC.; CITIMORTGAGE, INC.;
COUNTRYWIDE FINANCIAL
CORPORATION; COUNTRYWIDE HOME
LOANS, INC.; COUNTRYWIDE
SECURITIES CORP.; CREDIT SUISSE
(USA), INC.; CREDIT SUISSE FIRST
BOSTON MORTGAGE SECURITIES
CORP.; CREDIT SUISSE HOLDINGS
(USA), INC.; CREDIT SUISSE
SECURITIES (USA) LLC; CWALT, INC.;
CW/VIBS, INC.; DB STRUCTURED
PRODUCTS, INC.; DB U.S. FINANCIAL
MARKET HOLDING CORPORATION;
DEUTSCHE ALT-A SECURITIES, INC.;
Civil Action No.: 11 – 1533
COMPLAINT FOR RESCISSION AND
DAMAGES AND DEMAND FOR JURY
TRIAL
djabelanger, on August 11, 2016 at 10:11 am said:
On January 17, 2002, the State of Delaware enacted the Asset-Backed Securities Facilitation Act, 6 Del. C. § 2703A (the “ABSFA”). The ABSFA effectively creates a safe harbour under Delaware state law for determining what constitutes a true sale in securitisation transactions. – See more at: http://corporate.findlaw.com/corporate-governance/delaware-the-jurisdiction-of-choice-in-securitisation.html#sthash.K6LvgvEE.dpuf
The ABSFA first provides that “[a]ny property, assets or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets or rights of the transferor.”[1] Given the foregoing provision, to the extent Delaware law applies, the traditional legal criteria used in determining what constitutes a true sale in the context of a securitisation is intended to be irrelevant.The ABSFA further states that “[a] transferor in the securitization transaction … to the extent the issue is governed by Delaware law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the transferor any property, assets or rights purported to be transferred, in whole or in part, by the transferor.”[2] The ABSFA also provides that “[i]n the event of a bankruptcy, receivership or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed part of the transferor’s property, assets, rights or estate.”[3] The foregoing provisions facilitate reaching the conclusion that a true sale exists in the context of a securitisation transaction where Delaware law applies.A number of issues exist that may preclude the ABSFA’s application to a particular securitisation transaction, including whether federal law will preempt the ABSFA in making a true sale determination and whether Delaware law generally, and the ABSFA in particular, will apply to a transfer in a securitisation transaction. Although not yet judicially tested, the ABSFA is nevertheless a reason to seriously consider whether the parties to a securitisation transaction should choose for Delaware law to apply to their contractual relations – See more at: http://corporate.findlaw.com/corporate-governance/delaware-the-jurisdiction-of-choice-in-securitisation.html#sthash.K6LvgvEE.dpuf
The UCC Opinion
Because perfection of a secured interest in fixtures, etc., is obtained by filing a financing statement in the domicile of the LLC or DST, an opinion as to the enforceability of the financing statement is often requested and given. This opinion requires review of the UCC Financing Statement and application of the Delaware Uniform Commercial Code — Secured Transactions, 6 Del. C. §§ 9-101 et seq.
EXAMPLE:
Insofar as Article 9 of the Uniform Commercial Code as in effect in the State of Delaware on the date hereof (the “Delaware UCC’) is applicable (without regard to conflict of laws principles), upon the filing of each Financing Statement with the Division, the Lender will have a perfected security interest in each Borrower’s rights in that portion of the collateral (as defined in the applicable Deed of Trust, Security Agreement and Fixture Filing, hereinafter the “Agreement’) described in the Financing Statement that may be perfected by the filing of a UCC financing statement with the Division (the “Filing Collateral’) and the proceeds (as defined in Section 9-102 (a)(64) of the Delaware UCC) thereof
The UCC opinion expressed above is limited to the State of Delaware and is subject to a number of additional assumptions, qualifications, limitations and exceptions, including the following: (1) that Borrower has sufficient rights to the Filing Collateral and has received sufficient value and consideration in connection with the security interest granted; and (2) that each applicable security agreement and financing statement reasonably identifies the filing collateral.
On January 17, 2002, the State of Delaware enacted the Asset-Backed Securities Facilitation Act, 6 Del. C. § 2703A (the “ABSFA”). The ABSFA effectively creates a safe harbour under Delaware state law for determining what constitutes a true sale in securitisation transactions.
The ABSFA first provides that “[a]ny property, assets or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets or rights of the transferor.”[1] Given the foregoing provision, to the extent Delaware law applies, the traditional legal criteria used in determining what constitutes a true sale in the context of a securitisation is intended to be irrelevant.The ABSFA further states that “[a] transferor in the securitization transaction … to the extent the issue is governed by Delaware law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the transferor any property, assets or rights purported to be transferred, in whole or in part, by the transferor.”[2] The ABSFA also provides that “[i]n the event of a bankruptcy, receivership or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed part of the transferor’s property, assets, rights or estate.”[3] The foregoing provisions facilitate reaching the conclusion that a true sale exists in the context of a securitisation transaction where Delaware law applies.A number of issues exist that may preclude the ABSFA’s application to a particular securitisation transaction, including whether federal law will preempt the ABSFA in making a true sale determination and whether Delaware law generally, and the ABSFA in particular, will apply to a transfer in a securitisation transaction. Although not yet judicially tested, the ABSFA is nevertheless a reason to seriously consider whether the parties to a securitisation transaction should choose for Delaware law to apply to their contractual relations
While Delaware LLCs and DSTs may be organized for any lawful purpose (except some insurance-related purposes as to LLCs) lenders and underwriters often require that the LLC or DST be restricted to having only a single purpose. Thus SPE provisions are imposed to set limitations on how business is conducted. Some common SPE provisions include:
• Prohibitions against the acquisition or ownership of any material asset other than (i) the property that is the subject of the proposed transaction (the “Property”), and (ii) such incidental personal property as may be necessary for the operation of the Property.
• Prohibitions or restrictions on the company’s ability to take on additional debt.
• Requirements that the company at all times maintain its separate existence and good standing and refrain from certain types of amendments to its governing documents, fail to preserve its existence as an entity duly organized.
• Restrictions or outright prohibition of the company acquiring any subsidiaries, merging with or consolidating with another entity, or commingling any of its assets with those of any other entity, including parent companies and affiliates.
• Requirements that the company pay its own debts from its own assets and maintain its own separate books and records.
• Provisions forbidding the company from serving as guarantor for another entity’s debts or obligations.37
,
On January 17, 2002, the State of Delaware enacted the Asset-Backed Securities Facilitation Act, 6 Del. C. § 2703A (the “ABSFA”). The ABSFA effectively creates a safe harbour under Delaware state law for determining what constitutes a true sale in securitisation transactions.
The ABSFA first provides that “[a]ny property, assets or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets or rights of the transferor.”[1] Given the foregoing provision, to the extent Delaware law applies, the traditional legal criteria used in determining what constitutes a true sale in the context of a securitisation is intended to be irrelevant.The ABSFA further states that “[a] transferor in the securitization transaction … to the extent the issue is governed by Delaware law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the transferor any property, assets or rights purported to be transferred, in whole or in part, by the transferor.”[2] The ABSFA also provides that “[i]n the event of a bankruptcy, receivership or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed part of the transferor’s property, assets, rights or estate.”[3] The foregoing provisions facilitate reaching the conclusion that a true sale exists in the context of a securitisation transaction where Delaware law applies.A number of issues exist that may preclude the ABSFA’s application to a particular securitisation transaction, including whether federal law will preempt the ABSFA in making a true sale determination and whether Delaware law generally, and the ABSFA in particular, will apply to a transfer in a securitisation transaction. Although not yet judicially tested, the ABSFA is nevertheless a reason to seriously consider whether the parties to a securitisation transaction should choose for Delaware law to apply to their contractual relations
While Delaware LLCs and DSTs may be organized for any lawful purpose (except some insurance-related purposes as to LLCs) lenders and underwriters often require that the LLC or DST be restricted to having only a single purpose. Thus SPE provisions are imposed to set limitations on how business is conducted. Some common SPE provisions include:
• Prohibitions against the acquisition or ownership of any material asset other than (i) the property that is the subject of the proposed transaction (the “Property”), and (ii) such incidental personal property as may be necessary for the operation of the Property.
• Prohibitions or restrictions on the company’s ability to take on additional debt.
• Requirements that the company at all times maintain its separate existence and good standing and refrain from certain types of amendments to its governing documents, fail to preserve its existence as an entity duly organized.
• Restrictions or outright prohibition of the company acquiring any subsidiaries, merging with or consolidating with another entity, or commingling any of its assets with those of any other entity, including parent companies and affiliates.
• Requirements that the company pay its own debts from its own assets and maintain its own separate books and records.
• Provisions forbidding the company from serving as guarantor for another entity’s debts or obligations.37
i thought the Courts all required that the party with beneficial interest in a mortgage was the only party that could foreclose. So, in that light, when are they going to stop the trustees of the trust from foreclosing, and have an attorney for the Trust itself foreclose. just wondering. it makes no sense that anyone other than the party with beneficial interest can foreclose, but I see servicers, pretender servicers, trustees, etc., who really have no beneficial interest in the mortgage itself. This practice is all about percolating fraud.
Reblogged this on Deadly Clear and commented:
Absolutely correct. And where in the trust does it give a trustee the power to sue? Many (or even most) of the trusts say that the Trustee has no liability or responsibility for the quality or performance of the underlying loans. It appears the process requires the servicer or seller to buy back the defective loan at face value in order to initiate a foreclosure.
Kamala dear you are up for election in November. We might Trump your being elected to the Senate. Or we can help you get elected up to you.
NEVER AGAIN
This is great.
Neil, have you seen or heard of a recent case that decided a substitution of trustee was illegal or unlawful?
This may be a good time to publicize that case.
Jim Bonham
@activeresearcher:
Great suggestion to pursue AG Harris’ involvement in the matter in question!
Anyone have information about US Bank as the “trustee” buying notes at courthouse sales? Appreciate it!
The absence of an assignment is alleged because the assignment was void, fabricated, backdated and forged purportedly naming the Trust as an assignee means that the Trust neither purchased nor received the alleged loan. Courts continually ignore the obvious consequences of this defect: that the initiator of the foreclosure is claiming rights as a beneficiary when it had no rights as a beneficiary under the deed of trust.
This seems to be a problem in Rhode Island as well as mentioned to us by a few foreclosure defense attorneys. They advised us to write to local representative.
A suggestion: Why don’t you write a letter to the California Attorney General, Kamala Harris. She has been an advocate of Homeowner’s rights in the state. There must be someone in the myriad of attorneys who contact you that have an “in” to get a letter to her that she will read. Albeit, she is busy running for a Senate seat in November, this just may perk her interest to do an amicus curiae on behalf of the homeowner.