What is in a name? For Forensic Examiners Free Seminar on August 2

FREE SEMINAR FOR FORENSIC AUDITORS

 

The analysis of the name being used by the lawyers to present a Plaintiff defeats the existence of a legal person. And and in cases where the the same named Plaintiff has already initiated foreclosure and been dismissed, the findings of fact announced by the prior judge will bar relitigation of the same issues if the prior litigation result produced findings of fact that corroborate this analysis.

Either the Plaintiff is US Bank, (for example) in which case they have not alleged anything to show that it is and their styling of the case says otherwise, or US Bank is not the Plaintiff. US Bank will NEVER agree that it is the Plaintiff. US Bank will ONLY state that it has agreed and acknowledged that its name can be used in a “representative capacity.” US Bank will not even assert the existence of a trust in which the certificates have any relevance to an action for enforcement of the mortgage.

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The only reason the lawyers mention the certificates and SASCO is to mislead the court into thinking that there is a trust lurking somewhere and that trust owns the subject debt, note and mortgage.
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The implication is that there are certificate holders with the right to enforce the debt, note and mortgage. The implication is that the certificates convey a right, title or interest tom the debt, note or mortgage of the borrower. They don’t. In fact both the certificate holders and the trustee are barred contractually from even inquiring as to the status of the loans much less enforcing them.
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This is what forensic examiners are supposed to be doing — hunting down the certificates and finding the indenture — or failing that finding similar indentures are similar “certificates” which we all know were never printed or delivered but rather exist only in the   digital world.
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So it’s US Bank or nothing and US Bank will say it is nothing. The issue is how do we approach this issue? The lawyers will respond to it with doublespeak. They will say that the Plaintiff is US bank as Trustee and that the trust will be presented at trial using the Pooling and Servicing Agreement. They will argue that this is enough for pelading purposes to allege a legal person. And in the absence of the prior litigation they could arguably be correct.
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But the actual “Trust Agreement is NOT the PSA. It is a “Trust Agreement.” And the terms of that agreement speak the truth about the role of U.S. Bank and the nature of the “trust.” So the forensic examiner needs to find the Trust Agreement and the indenture.
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So it boils down to getting the lawyers to admit that US Bank is NOT appearing in its own behalf and US Bank is not the trustee or authorized representative of any legal person who owns the subject debt, note and mortgage by virtue of having paid for it. The forensic examiner should simply refer to the proclamations on the website of US Bank.
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It’s obvious that US bank has none of the powers of a trustee and is a naked nominee with no more power to do anything without instructions from the owner of the debt than MERS has when executing assignments of mortgage.
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The hidden nuance here is that the investment bank (Lehman) was doing business as the SASCO Trust and DID fund the loan (or acquisition of the loan), but the whole business plan was to divest itself of all ownership of the loans so they would not appear on the Lehman balance sheet. Such divestiture occurred usually within 30 days from the origination of the Certificates issued in the name of the putative SASCO trust.
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So Lehman was briefly a creditor but sold the debt. US Bank if it is a trustee at all, is actually only a trustee for Lehman as to naked title to the paper but never the debt. That is what the actual Trust Agreement says (not the PSA). US Bank is being used in the same way as MERS.
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The Subject Loan was not on the Lehman books when Lehman declared BKR in October of 2008. The only party showing records relating to the subject loan was a servicer, but they did not own the loan. Thus the investment bank (Lehman) had stripped off all attributes of the debt, revenue, risk of loss etc. and sold each one as derivative products amounting to many times the principal amount of the loan.
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Nobody claimed ownership of the debt because nobody wanted it and nobody cared whether it was paid. Everyone had already been paid and nobody wanted risks associated with ownership of the debt. They only wanted the revenue from enforcing the paper. All the money arising from payments from the borrower was coming in as revenue and not as an offset on the books of Lehman or any other entity to what had been the borrower’s loan receivable — an entry that no longer exists anywhere on the balance sheet of any company.
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We can’t argue that in court. No judge will like it even if they agree it is true. But we can ask questions and argue around it such that there are unanswered questions that the lawyers, Ocwen, the new servicer and US Bank refuse to answer. That is all we need to defeat the new foreclosure and show that US bank and Ocwen were engaged in an illegal enterprise to lie to the borrower, lie to the court and even file false documentation in the county records and  the court records.
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Bottom Line: If they get the house they will take it as revenue and not to pay down the debt. That means there is no financial injury for which the sale of the house serves as a vehicle for restitution. And THAT means that the court lacks jurisdiction to hear a case where there is no actual injury. That injury can be presumed through pleading but must be proven at trial. Proper objections based upon a knowledge of the true facts, plus effective cross examination will blow up the robowitness.

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The job of the forensic examiner is to ferret out the relevant facts and distill them for use in court.

5 Responses

  1. Dan Schramm, — thank you. I know what you have done to help, and respect you. You speak honestly and I agree. .

    In all law, the trustee must hold the note and mortgage. Trustee is the legal holder. But, I happen to know that the servicer’s attorneys have the claimed note in pocket. Now, if you are paying, should this be??

    According to PSAs, the trustees must give authority to servicers to hold the note. If no authority is given — how did the servicer get it? I would greatly appreciate if you could give an answer to this.

    Also, you state – “but the contract is not with the trustee, it is with the Master Servicer.” Please clarify. What contract? Borrower contract? Investor contract?

    I also agree, and know – that there is no retainer agreement with the trustee, and no representation for the trustee. Why do you think this is?

    Kangaroo Courts — also agree.

    Please respond. My particular claimed trust is your expertise. I will try to email you.

    Thank again.

  2. Confused is what this is, as it reveals a lack of understanding on basic trust law, but at the same time it points out a bigger issue. Foreclosures are done in the name of the REMIC trusts trustee, as the trustee holds the note for the investors. The trust has nothing to do with the foreclosure. The trustee does not collect mortgage payments, thus does not send the default notice or foreclose. This is all done by a contracted servicer, but the contract is not with the trustee, it is with the Master Servicer. The real issue is that the plaintiff lawyers have no retainer agreement or PofA with the trustee and the trustee never appears in the case. Judicial foreclosures are really heard by kangaroo courts.

  3. Java — you are right on it. What Neil writes is good. But, two problems with it 1) Nothing was ever funded, because all of these loans were obtained by derivative Swap default contracts with Fannie and Freddie. All that was funded was the purchase of the collection rights to F/F claimed defaults.

    The trusts are, in effect, derivatives of F/F derivatives!! Mortgage remains with F/F. All unsecured debt.

    Now, I have the opposite problem of what Neil claims is needed. I am not in foreclosure, still paying, and can prove never in default with past payoffs and payments. Yet, somehow I an still internally reported in default .

    In order to get out of the high rate loan, I need to show that the TRUSTEE is the legal holder. Trusts cannot operate without a legal holder. Trusts cannot stand alone. But, trustee ADMITS that they are not the legal holder. They don’t have anything. So left with no one for legal title to refinance or sell. This affect title insurance.

    So even if win the battle on standing in a foreclosure — how do you ever get legal title?

  4. 1. What about Fannie and Freddie as “investors” but hiding in shadows by using servicers to be the Plaintiff even though everyone knows that they are NOT Lenders but debt collectors on UNSECURED debt.

    2. And where did my $100,000 hard money deposit go ?.?.…not to the seller !!!

  5. Pretty well written explanation Neil. Good work!

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