One common thread in the emails I receive is the complaint that the borrower’s lawyer failed to agree or find that the the debt, note or mortgage was owned by a trust. The reason for that is that in order for “the trust” to be the owner of the debt, it must exist.
In most cases, if you look carefully you will see that even in nonjudicial foreclosures and always in judicial foreclosures there actually is no assertion that a trust exists, or that the certificate holders have an interest in the subject debt, or that the “trustee” owns the debt on its own behalf or on behalf of anyone else. Instead, everyone seems to assume that the assertion was made. But I have found no instance in which the assertions were actually made. The result is that homeowners are fighting a ghost.
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So I answered a recent inquiry as follows:
I don’t think the trust does exist. A ream of paper was scanned and then the digital file was uploaded. The SEC is not a registry where legal entities are created. The SEC does not review or approve or even disapprove of documents that are uploaded. Uploading documents does not require an oath that the documents mean anything or are true.
I think what the judge is telling you is that if you want to do something, in his opinion, you should file necessary papers to remove the DOT from your chain of title. You check with local counsel but this probably means filing and recording an affidavit that disclaims the DOT and filing a lis pendens with a lawsuit that seeks to cancel the DOT of record.*In order to cancel an instrument you need to show more than that some party can’t enforce it. You have to show that nobody can enforce it. Check with local counsel on this but I am pretty sure I am right. There are only two possibilities:*(a) the instrument shouldn’t have been recorded in the first place which means it should never have been executed or delivered. This can be shown if the document lacks signatures or if it fails to name the parties. It is my position that any document that fails to name a party who in fact fulfills the statutory requirements to be a beneficiary under a deed of trust is a document that was never completed or which contains a fatal error. However, the naming of a party as a beneficiary on a recorded instruments raises certain presumptions. That means you need to challenge the presumption even if the beneficiary is named “Donald Duck.” So your affidavit and your action should state a factual basis for disclaiming the named beneficiary as qualifying to be a beneficiary (i.e., the owner of the debt). I think the factual basis would be that the named beneficiary never loaned any money to you and was not acting as the authorized representative of anyone who did loan money to you. My analysis indicates that both Donald Duck and the REMIC Trust are fictional characters.*(b) the instrument is now void by operation of law. For example if a notice of rescission was sent. Beware that courts are twisting themselves into pretzels to avoid treating the rescission under TILA as an event and rather treating it as a claim. This judicial pattern of conduct is against the wording of the statute 15 USC §1635 and the wording of SCOTUS opinion in Jesinoski.*With Ocwen, New Century, and Deutsch involved there is little doubt in my mind that at a minimum the DOT is not enforceable by them. That might call for a lawsuit seeking declaratory, injunctive and supplemental relief.*If you need help in drafting we can help with that.
Filed under: foreclosure |
Its actually very easy to check out – go to IRS site, find Publication 938 and it has all existing REMIC Trusts directory published every quarter as I recall. If a Trust who try to foreclose on you is not listed on IRS REMIC Trust directory, its likely a FAKE
file:///D:/Users/Consolidated/Desktop/11ch28887/IRS%20p938–MARCH%202009%20-%20REMIC%20TRUST%202006FM%201%20IS%20MISSING.pdf
Reblogged this on Deadly Clear and commented:
“I think what the judge is telling you is that if you want to do something, in his opinion, you should file necessary papers to remove the DOT from your chain of title.“
Unfortunately, you will find that judges do not care if it was registered properly in the correct state. My judge did not care it the note made it to the trust in a timely manner.
My Trust is Soundview Home Loan 2005-4, Deutsch Bank is Trustee. I have spoken to The State of Delaware where it is to be registered. It was never registered, and I was told it has to be in order to be a legal entity. I also was told by the Wisconsin Attorney General to read the Trust Laws in The State of Delaware. So maybe the answers lie in the trust laws. Any thoughts?
sunman…unfortunately, nothing.
How about SLABS Trusts? I am disputing my student loan.
Bob G — you are right again — Sold off to hedge funds. So someone in position to know — tells me hedge funds don’t hold mortgage notes. Yes — he/she is correct. But, they can own distressed debt — which all was from beginning. Even though security underwriters tried to present these trusts as valid — they were not No validity. Trusts OWN nothing. Trustee is legal holder but ONLY if the loan is ACTIVE in the trust. None were active in any trusts. Trust itself – owns nothing. And, the trusts were never valid. .
Hedge funds – -yes — and, see my other post under -Can MERS assign the debt? Rick Ranting — tenth anniversary of his ranting.
Did the people ever stand a chance with that kind of publicity? NO. But, Neil won’t let that happen — and, neither should anyone else.
Thanks Neil – and Bob G. .
Bob… Given what you say is true…( I believe it is). What can be done at this late date? I was foreclosed on in 2010… The judge did not care that the “assignment” was over 3.5 years AFTER the “loan” was “closed”. U.S. Bank did not have to show that it had any right to foreclose… It did not have to, according to the judge.Ha! Fraud on the court, and I lost my house of 32 years.
Does anyone here know a good attorney who specializes in securitization in Rhode Island ?
The IRS is supposed to now about the REMICS, but does it?
This is an easy one. Just Google IRS Publication 938, and search by year. Typically, you will find your REMIC trust in there in the year of its formation, but not after 2008. That’s because the trust shell is gone and the assets have been sold off to third parties such as hedge funds, that are merely renting the bank’s name because…well, because it has bank in its name, and the courts presume that they lent the money and will suffer the loss if not made whole. What the courts are missing is that the hedgies are merely foreclosure speculators and not lenders.