Securitization and Standing

Like other decisions establishing  the law of the land, the decisions of SCOTUS are often taken as advisory or optional. Nevertheless TILA Rescission and Article III standing have been affirmed by the Court of last resort. Reluctant judges in trial and appellate courts will get their hands slapped one more time but all the bad prior decisions and their consequences  are neither reversed nor redressed.

Standing is pretty easy — it must be alleged in facts that will be proven at trial. If it isn’t alleged or isn’t proven at trial, the Court lacks jurisdiction to do anything other than to dismiss the claims of any party seeking satisfaction because they have no claim for redress.

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See 2017 US Supreme Court case defining burden of PLEADING legal standing: Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650-1651 (2017)

There are three elements of standing:

  1. The party claiming the ultimate relief (like the party seeking foreclosure) MUST have already suffered an injury in fact — one that is “concrete and particularized.” This means that alleging a default is not enough. The presumption that the pleading party suffered economic loss only arises if they plead and prove that they had a right to payment which was not received, thus constituting a default. Nobody alleges that because it isn’t true. Nobody is entitled to any satisfaction in court without pleading and proving facts that the alleged default actually caused financial loss (injury) to the party seeking relief (or the disclosed principal in an agency relationship with the party seeking foreclosure). This feature is particularly twisted in nonjudicial states where the party makes no claim for foreclosure; instead they merely file papers in the county records and put the home up for sale. Standing is nonetheless required in both judicial and nonjudicial states — a fact often ignored in most courtrooms.
  2. The injury must be traceable to conduct of the party alleged to be in default or breach. Hence the party seeking satisfaction through foreclosure must establish that they had a legal right to receive the payments that were specified in the note and mortgage (deed of trust) either because they own the debt or because they represent someone else who owns the debt. Failure to reveal the party who owns the debt leaves the court without any pleading or proof as to who, if anyone, was financially injured when the homeowner stopped making payments to a party that could possibly be the authorized representative to receive such payments and also could possibly not be the authorized party to receive payments. The presumption of injury only arises  when the right to receive payments is both alleged and proven. Once again, courts have twisted this element beyond recognition. The missing creditor is presumed to exist, without a name or any other identifying characteristics.
  3. The injury, once established, must be likely to be redressed by a favorable judicial decision. So if the foreclosure occurs and the sale is made, what will be the ultimate result of liquidation of the property. The answer is that unrelated parties will enjoy the fruits of foreclosure, which is why servicers are under strict instructions not to reveal the recipient of funds paid by putative borrowers. The proceeds from the sale of the property must be claimed by the party seeking foreclosure or claimed by the party on whose behalf the foreclosure was pursued (assuming that party is the owner of the debt and not another conduit). The trusts are all conduits if they claim REMIC status. That is why there are never allegations that the trust owns the debt or is anything other than other than a “holder.” The right to enforce appears to be presumed but is inaccurate since the Trustee and the Trust were absent from any transaction involving the subject loan. So if the proceeds are not going to the party who loaned money and are not going to anyone who bought the debt, there is no subject matter jurisdiction. Here again the courts are twisting laws beyond comprehension by presuming everything that is not susceptible to proof.

The side note is that it does not appear that the REMIC trusts actually exist or were involved in any financial transaction relating to the loans that lawyers claim it owns. SO the claimant does not exist leaving the court without any semblance of jurisdiction if the pleadings are scrutinized for allegations that the “Trust” is a REMIC business trust organized and existing under the laws of the State of New York, for example. They don’t make that allegation — common to all other pleadings in other civil cases — because the trust is merely a graphic image having no significance except for the purposes of foreclosure.


17 Responses

  1. OR…

    Did there never exist an ABS REMIC trust in the first instance, hence no tranches at all for anyone to purchase an interest in?

  2. @ Carol, & ALL

    Another opinion:

    >IF< there was a putative ABS REMIC trust, then putative ABS BOND CERTIFICATE PURCHASERS purchased various interests tranches, some of which may have been Depositor(s)/Sponsor(s) purchasing the "bottom of the barrel" tranches — but with whose monies?

    A "dark pool" of monies from … ?

  3. No wait. Did I make a mistake? The lwoer tranches are held by the DEPOSITOR. So they’re never even SENT to the ‘trust/trustee.’

  4. I really need to ‘get’ this. Adding from ANON & Sara, assuming your loan ‘made it’ into a lower tranche you were NOT securitized, and $ in those accounts goes to the servicers.

    So when the Servicer’s lawyers show up in court with manufactured assignments to show you went into thus & such ‘trust,’ in fact YOU DID NOT go into the ‘trust’ at all because (you were in a lower tranche) some factor obstructed you from acceptance into the “trust corpus?”

    Is that it?

  5. Bob, I read that in multiple working papers on securitization. The “rx” tranche (irregular income tranche) is held by the sponsor/issuer.

  6. roger…how do we know this for a fact?

  7. Yes, Carol, exactly. Those tranches receive all the irregular non-interest income from the foreclosures and are held by the sponsor/issuer.

  8. Thanks roger, ANON, Sara. Is THIS what you mean?
    ( from an 8k for my HSBC Nomura “trust:”)

    The Certificates, other than the Class B-1 Certificates, Class B-2 Certificates, Class P Certificates, Class X Certificates and Class R Certificates, and the Mortgage Loans are more particularly described in the Prospectus Supplement, dated October 27, 2005 (the “Prospectus Supplement”), and the Prospectus, dated October 27, 2005, as previously filed with the Securities and Exchange Commission pursuant to Rule 424(b). The Class B-1 Certificates, Class B-2 Certificates, Class P Certificates, Class X Certificates and Class R Certificates have not been and will not be publicly offered by the Depositor.

  9. Servicer want to round their $ figures on their $’s on the penny, scraping it from penniless fragile clients due to WFB Fake modification premeditated foreclosure

  10. the bottom “rx” tranche, or whatever designation they give it, is the receptacle for all the irregular income received from foreclosures, and pipelining it to the servicer.

  11. Sara is absolutely correct. Way to go Sara.

    Lets go way back. Bottom tranches were never securitized. Meaning NEVER sold to MBS security investors – via security underwriter. . Those tranches is where all “default reported” loans eventually go. Whether by repurchase from onset from origination of trust, or later repurchase, or by default reported subordination — AND WHETHER OR NOT — actual default occurred at that time.

    Neil should recall this. Seems to have forgotten. And, who owns those non-securitized tranches? Either the seller (likely gone), or the Depositor (likely gone), or an undisclosed “third party investor.” So – Neil — let’s go back to those unsecuritized tranches. Contract derivatives – swapped out – to Third Party Investor. “RESIDUAL.” And, who may that investor be? Secured then or unsecured debt– as somebody’s balance sheet had to take the charge-off hit? And who was that? . Ahh — Remember Barney discussing this? .

    Not all that is securitized, or claims to be, shines bright. Sara is 100% correct.

    Thanks, Sara.

  12. I dont even know hows the NOTE looks like! been busyholding few jobs all my effort gone with the wind, WFB r Hijackers!

  13. Sara…if you have a way of getting around the argument that the homeowner lacks standing to challenge non-compliance with the REMIC trust agreement, because they are not a party nor an intended 3rd party beneficiary, then do tell.

  14. Bob, you APPEAL up the ladder.

  15. CAVEAT:
    Never start your motions with “it appears that REMIC trusts don’t exist” as there is enough evidence to prove otherwise. But the terms are usually vulnerable to challenge [late deposit, flawed compliance with the pooling and servicing agreement, no trust was ever formed, et al.]
    One view is that the CORE ISSUE is whether YOUR note was ever legally transmitted [assigned] to the trust corpus [pool of notes overseen by a trustee]. It’s complicated without a consultation from our trust experts. Call today if you need assistance to Consumer Rights Defenders and ask for Steve or Sara. Reference TRUST issue when you call. 818.453.3585

  16. Reblogged this on California freelance paralegal.

  17. If a state court were trying to prevent an abortion, the feds would be all over this. So the question for NG is how do we get this SCOTUS decision enforced on state courts?

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