The Fallacy of Legitimacy: SEC Documents are not Evidence

Documents filed with the SEC are not evidence of the legitimacy of a PSA.  The PSA was not filed with the SEC although the banks would like you to think so. The document, such as it is, was loaded onto the SEC website without any review or acceptance process. Anyone can load documents onto the SEC website. In fact, you can upload them yourself if you have an account.

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In most cases the PSA loaded onto the SEC website is incomplete or unsigned. As an example, in nearly all cases there is no Mortgage Loan Schedule attached as an exhibit and other exhibits referenced in the PSA are also not attached.

As an incomplete trust document, the trust is not created by a settlor since until the trust document is complete, there is no trust. No trust can be implied either since there is no indication that anything was ever entrusted to the trustee nor that the Trustee acquired assets on behalf of the trust and thence the trust beneficiaries. Without property or money entrusted to an active managing trustee of a Trust borne from a completed trust instrument, the claims of servicers, trustees, etc., mean nothing because there is no active trust and thus there is no active management of business activity for a trust. A document uploaded to the SEC does not make the Trust so.

Hence there is no trust, trustee or servicer since all of them claim rights derived from a nonexistent trust arising from an incomplete or unsigned instrument (or both).

The banks know all of that. They load documents onto the SEC website or even other sites where the same access is granted. Then they print the version loaded from the SEC website without any certificate of authenticity and ask for judicial notice. This is not a government document e.g., where the time, date and signature of an authorized party is noted. This is not a commonly known fact or group of facts in the public domain. This is a self-serving document created out of thin air presented without the original as a document offered as “Evidence” of the existence of the trust and as evidence of the loans owned by the Trust, neither of which assertions is even remotely true.

Hence a motion for judicial notice, while often allowed by foreclosure defense counsel, is completely inappropriate and should be disallowed every time — if the foreclosure defense attorney presents his objection or motion in limine well enough. Even the argument for letting it in to show the document exists would be disingenuous (i.e., wrong) because the fact that an image was loaded onto the SEC website by the party proffering the evidence does not mean that the original document exists. Therefore, challenge the document as disingenuous when presented, and don’t rely on the document as proof in your own litigation. Demand the full PSA in discovery, signed by an actual corporate officer with ALL schedules and attachments, and especially mortgage loan schedules.


14 Responses

  1. only explosion will wake, the judges and government, up to help the homeowner innocent citizen, been kicked out of the house while we were still thinking the Wells Fargo bank is working on our modification

  2. This is not a legal advise.

    It is possible to get a certified copy of PSA of these asset backed securities trusts from SEC.

    Pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended, concurrently with, or subsequent to, asset backed securities trusts file Prospectus and Prospectus Supplement with SEC.

  3. @ ALL

    Statutory Analysis Affirming that Mortgage Servicers ARE Debt Collectors Under Rosenthal Fair Debt Collection Practices

    CERTIFIED for Publication in Kalifornia

    DAVIDSON v. SETERUS, INC., No. D071502 (Cal. App. 3/13/2018)

    “At issue in this appeal is whether mortgage servicers can be “debt collectors” under California’s Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act; Civ. Code, § 1788 et seq.). There is a split of authority among the many federal district courts that have considered the issue, and there is a paucity of California authority addressing the question.”

    “On appeal, Davidson contends that the trial court erred in determining that mortgage servicers are not “debt collectors” under the Rosenthal Act. We ultimately agree with Davidson’s contention, in no small part due to our adherence to “the general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313, italics added; see Florez v. Linens ‘N Things, Inc. (2003) 108 Cal.App.4th 447, 450.) It is clear that the Rosenthal Act is a civil statute that was enacted for the protection of the public, and in interpreting it, we are mindful of the fact that, to the extent that the statutory language is ambiguous, the statute should be construed broadly in favor of protecting the public. Given this principle, and the fact that the Rosenthal Act’s definitional language is sufficiently broad to include mortgage lenders and/or mortgage servicers within its purview, we conclude that mortgage lenders and mortgage servicers can be “debt collectors” under the Rosenthal Act.
    We therefore reverse the judgment of the trial court and remand for further proceedings.”

  4. @ Roger (UKG)

    Directly from WELLS own mouth:

    “Conduit loan servicing: Who’s who and what’s what?

    The thing most borrowers fail to realize about conduit loans is that once a loan has been securitized, they are not working with a “lender” anymore. The loans are pooled into a securitization called a Real Estate Mortgage Investment Conduit (REMIC). The REMIC is a
    trust and it has no lenders, only fiduciaries of the “certificate holders.” Once the loans have been pooled and securitized, the players are as follows…”

  5. And ANON, thank you for piping up. You previously espoused the scenario that these loans were defaulted shortly after origination for errors and omissions and then became “debt collections” thereafter. Did I understand that correctly? And I’m talking years ago when this discussion was raging on this site.
    I’d like to send you the exhibits I provided to Neil. Send an email in confidence to usedkarguyatyahoodotcom and I’ll send you the MLS and other supporting docs I believe prove my point that the Wells Fargo FAKE ACCOUNT operation extended into MBS before it hit the retail banking operation.

  6. Neil, thank you. The loan number is carried in the WFHET 05-2 (Wells Fargo Home Equity Trust 2005-2). I have that in Bloomberg screen shots. The EX-99 that I pulled in 2008 that I mistakenly thought belonged to the WFHET 05-2 is identified via the CIK (Central Index Key) to have been filed as part of an 8k for the WFMBS 2005-7 (Wells Fargo Mortgage Backed Securities Series 2005-7). I sent exhibits to your email.
    The reason this is significant is that one trustee (05-2 “empty trust” no EX-99 ever filed) is HSBC, and the other trustees would be BofA and Greenwich Capital (05-7 trust). And more importantly if the certificates have been paid off or extinguished (as the subordinated certificates were) and it’s a loan account in default many years later (default declared in December 07) AND Wells comes to court relying on a HAMP MOD from 2010 that names Wells Fargo as the lender, THERE CANNOT BE ANY TRUSTEE! It’s all and always has been WELLS FARGO. As custodian for all these securitizations, the collateral files never moved. They were pledged multiple times to multiple securities.
    If subprime was only 20% of the market, how did subprime assets alone take down the whole market? Because re-collateralisation (not rehypothication) was the order of the day in the 2000-2007 range of originations.

  7. @ Stan Burman

    You are correct, as affirmed by a most recent case:

    3. Judicial Notice and Its Limitations

    The general rule against speaking demurrers is subject to an explicit statutory exception. The grounds for a demurrer may be based on the face of the complaint or “any matter of which the court is required to or may take judicial notice.” (Code Civ. Proc., § 430.30, subd. (a); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, a court considering a demurrer may take judicial notice of the existence, content and authenticity of public records and other specified documents. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262.) However, courts do not take judicial notice of the truth of the factual matters asserted in those documents. (Ibid.)

    The application of these principles defining the scope of judicial notice is important to the outcome of this appeal. Their application is illustrated by a case where the trial court took judicial notice of various recorded documents—specifically, a deed of trust, two assignments of the deed of trust, two substitutions of trustee, and a notice of default and election to sell under the deed of trust. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116.) The appellate court stated:

    “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution [of Trustee] recites that Shanley `is the present holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be considered not reasonably subject to dispute.” (Id. at p. 1117.)

    Similarly, in Herrera, supra, 196 Cal.App.4th 1366, the court concluded a substitution of trustee stating the bank in question was the present beneficiary under the deed of trust did not establish the bank was the beneficiary because the statement was hearsay and the fact was disputed. (Id. at p. 1375.) The court also stated:

    “Nor does taking judicial notice of the assignment of deed of trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, `successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY’ assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the assignment of deed of trust remains subject to dispute [citation], and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.” (Ibid.; see Yvanova, supra, 62 Cal.4th at p. 924, fn. 1)

    To complete our overview of judicial notice, we recognize the rule that courts do not judicially notice the truth of factual matters asserted in documents is subject to a narrow exception. Evidence Code section 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.” (See Satten v. Webb (2002) 99 Cal.App.4th 365, 375 [recitals in exhibits attached to complaint].) Of course, a party must establish that it actually is a successor in interest before the conclusive presumption applies.

  8. Reblogged this on California freelance paralegal and commented:
    I believe that the general rule is, at least in California, that judicial notice can only be taken of the existence of certain documents, even if they are recorded, not their authenticity.
    The California Supreme Court has stated that, although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.

    For example the court can only take judicial notice of recorded documents, it cannot take judicial notice of said documents if their truth or authenticity is disputed. See Skov v. U.S. Bank National Assn. (2012) 207 Cal.App.4th 690, 696 (where bank sought judicial notice of a notice of default declaration stating compliance with Civ. Code, § 2923.5, whether the bank complied with section 2923.5 is the type of fact that is reasonably subject to dispute, and thus, not a proper subject of judicial notice.)

    A matter ordinarily is subject to judicial notice only if it is reasonably beyond dispute. See Fremont Indemnity Co. v. Fremont General Corp., supra 148 Cal.App.4th at p. 114-115.

    When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal. App.3d 369, 374. Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at page 374 stated: “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.

  9. Neil is correct, And who allowed this? And, Roger, Mortgage Loan Schedules were only an INTENT to sell — does not mean sold.

  10. The MLS is almost always absent from any unload to the SEC site, so it depends what you mean by “find.” There is no original PSA any more than there are original notes. I don’t know what you mean by “it belongs to another security.” I will assume you mean trust. If a loan is claimed by two trusts the question is whether they BOTH have an interest in the loan or whether one of them does or the most likely, neither of them do because neither trust exists..

  11. What crazy is that WaMu is been defunct since Sep 25, 2008, so not only cannot the bank that no longer exists not pay the investors that purchased the Ginnie MBS but no one else of the planet earth pay the payment to the investor. The investors are insured by Ginnie Mae at 100% principal investment only, as the MBS has been in default since Sep 25, 2008!

    Now the SEC says they only intervene when the investors are ripped off however the Securities are invalid as the issuer stop existing the insurer can only pay out the claim. What happens is that the reality is there no actual underlying collateral for the MBS and Obama authorized the illegal foreclosures of all 100% of Dept of VA military borrowers properties that as of Sep 25, 2008, stop having a mortgage debt!

  12. Good subject. At the closing for our house, I asked the lawyer about the function of the deed of trust. He said “it gives legal title, while you retain beneficial interest.” I argued with him that the holder of legal title pays the taxes, and that if I called the register of deeds tomorrow, he would tell me I have legal title.

    I finally got the lawyer to admit that the deed of trust represents a future, contingent interest. There is no trust, unless and until you default. That’s one reason you are free to place your house and land in a trust. You couldn’t do so without legal title (control).

  13. The fraud goes wide. I now have three different mortgage documents in my case.

  14. I know answers to direct questions are seldom forthcoming here, Neil, but riddle me this?
    What happens when you DO find the mortgage loan schedule that displays your loan level information, including loan number, Insurance certificate number, close/lock/zip/FICO/floor/cap, AND IT BELONGS TO ANOTHER WELLS FARGO SECURITY, and your loan appears in the BLOOMBERG in ANOTHER SECURITY altogether?

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