Livinglies's Weblog

The answer is always the same — follow the money trail to the truth or follow the fabricated paper trail to a grand illusion.

Since the banks, servicers, originators, aggregators and others maintain radio silence as to what is going on and who is doing anything it should come as no surprise that lawyers will find it necessary to resort to “placeholder names” because they don’t yet know the actual name of an entity they have figured out must be involved but whose name is being withheld.

This is developing into a trick question: The research needs to be concentrated on “placeholder names”. LendingLies has added drafting and research services wherein our paralegal team to do the research and drafting. If not us, then get someone who truly understands the nuances of securitization fail (see Adam Levitin, who coined that phrase denoting claims of securitization that are not, and never were true).  should hire the paralegal to do the drafting and me to do editing if you even get a chance of amend your pleadings.

“The names “John Doe” or “John Roe” for men, “Jane Doe” or “Jane Roe” for women, “Johnny Doe” and “Janie Doe” for children, or just “Doe” non-gender-specifically are used as placeholder names for a party whose true identity is unknown or must be withheld in a legal action, case, or discussion.^[1] The names are also used to refer to a corpse or hospital patient whose identity is unknown. This practice is widely used in the United States and Canada, but is always used in other English-speaking countries including the United Kingdom, from which the use of “John Doe” in a legal context originates. The names “Joe Bloggs” or “John Smith” are used in the UK as placeholder names, (mainly to mean ‘any old person’, the classic ‘Everyman‘)^{[citation needed]} as well as in Australia and New Zealand.” Wikipedia

1. Who has standing to request dismissal of Does? If any named defendant is requesting the dismissal of the Does they clearly are admitting that they are either the Does described by Plaintiff or that they have a unity of interest with Does, in which case service on the named Defendants proffering the motion has been accomplished and the Does have been identified by the conduct of the named defendants. Standing to file a motion to dismiss requires that the motion be filed by the party to the action that is sought to be dismissed. And even if there is a unity of interest between the named defendants who filed the motion and Does it is still Does who must file a motion to dismiss.
2. Service or no service: If you have attempted to serve Does by publication you are probably in the clear. But if not, they might have a point — if they have the standing to raise it. But if the named Defendants who filed the motion are in fact the same as the Does then you have already achieved service, so long as it is clear on the record that the Defendants claim to be the same as the Does described by you.
3. Description of Does: This is another tricky part. Each class of Does must be composed of “persons” who can be identified. If there are different potential defendants in in Does then Does must be amended to Does and Roes and perhaps other designations to show that they are out there and you are suing them, but you don’t have the precise identification of them because the named defendants are withholding the information and submitting false information to you and the court.
4. Does could be described as persons or entities sharing in a joint venture or common enterprise. That might eliminate the need to use several different placeholder names.
5. The “ownership” of a trust. Nobody owns it unless it is a revocable trust and even then there is no ownership of the trust nor even ownership of the property unless the money or property has been transferred into the trust — something that is missing from nearly all REMIC trusts.
6. The entities or persons that are described as having “owners” are not trusts. When people assert the word “owners” they are actually describing “beneficiaries.”
7. Every trust is composed of four elements in order to be considered a legal entity: A trustor, a Trustee, a COMPLETE trust instrument (in our context, the Pooling and Servicing Agreement) in writing and one or more beneficiaries.
   1. The beneficiaries have a beneficial interest in the trust but they do not own it.
   2. This leads to the question of why would you need to have any interest or knowledge of the beneficiaries? Trick question again. The answer lies in the question of whether, as you probably are alleging, the beneficiaries are using the name of the trust to create an artificial distinction between their actions and the trust’s actions. I.e. that the trust is a sham entity designed to shield the putative real parties in interest from liability for wrongful and/or illegal conduct.
      1. But in all likelihood there is no real party in interest because there never was a real transaction between any of the people, persons or entities claiming an interest in a putative loan on one hand, and the homeowner on the other hand. Don’t confuse the debt, which is real, and the note and mortgage which are fictional in their content.
   3. This is why “the investors” is a term that has been used interchangeably with the word “beneficiary.” The investors in MBS are mostly managed funds, not people. The investors who bought Mortgage backed Securities (MBS) are pension funds and other managed funds including many “stable managed funds” like pension funds. The investors in the managed funds are mostly people although there could be another layer of entities that are eventually owned by people.
   4. The investors who paid money for certificates issued by the trust are third party beneficiaries of the debts, note and mortgages acquired by the trust — IF any money or property was acquired by the Trust. If not they are not third party beneficiaries of anything, since there is nothing in the trust.
      1. Those MBS investors have no legal relationship (nor any other relationship) with homeowners — except this: the owners of the putative uncertificated certificates (i.e., on computer records only and no paper certificate issued) paid money so that their money would be managed by the Trustee of a Trust that would purchase existing mortgages.
      2. The reality is that the money never went into the trust and the trust therefore never had the means by buy existing loans. Hence neither the trustee nor the trust nor the beneficiaries have any legal ownership or control over the debt, note or mortgage.
      3. AND any servicer who claims to have servicing rights over the putative “loan” has nothing if they rely upon the trust instrument (PSA) for a trust that is empty. This is why you see “Powers of Attorney” and “attorney in Fact” designations pop  up out of nowhere to cloud the issue of ownership to the point where the court relies upon the “obviously” more credible bank and PRESUMES ownership and authority. [PRACTICE NOTE: IT IS COMMON FOR THE FORECLOSURE ATTORNEY TO SUDDENLY INTRODUCE A POWER OF ATTORNEY OR SIMILAR DOCUMENT AT TRIAL THAT HAS NEVER BEFORE SEEN THE LIGHT OF DAY. A TIMELY OBJECTION TO ADMITTING SUCH A SURPRISE DOCUMENT INTO EVIDENCE CAN MAKE THE DIFFERENCE BETWEEN VICTORY AND DEFEAT. ]
      4. The Zuni trusts fall generally under the category of re-securitized trust based upon the information at hand. This gives the appearance of a transaction wherein a previous trust or entity sold existing loans to the Zuni trust. But the underlying problem is till there, to wit: the original trust or entity never owned the debt, note or mortgage.
      5. [PRACTICE NOTE: The entire purpose of fabricating documents for multiple layers of transactions is to intimidate the borrower, borrower’s counsel and ultimately the court into assuming the transactions are real for fear that if they pull the proverbial thread, the entire sweater might unravel — thus disrupting dozens of “bona fide” commercial transactions — a presumption that is manifestly untrue.]
      6. It may be possible that some money was funneled through a bank account in the name of the Zuni trust, thus creating the illusion of a real transaction. But if the money trail is followed closely, say by a CPA using auditing standards generally accepted under published nationally recognized accounting, you will find that the money either never actually went where it appears to have gone and/or that it either returned to its origination point or went to an affiliated conduit or sham entity.
      7. You should know that the only “accounting” or “bookkeeping” records are those maintained by the underwriter of the certificates offered for sale. The reason is simple: the money trail they are pushing on you and the court doesn’t exist. Hence the “records” are false records and that is why they will never ever give them up.

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