Don’t get lost in the weeds. In a normal trust situation the trust is the entity that owns the assets that were entrusted to the trustee. Of course any Trust or Corporation or any other business entity is a legal fiction that we use for convenience. We are able to do that because legislatures have passed laws (statutes) that allow for the creation of such entities.
For some purposes they are considered legal persons. They are not actual living persons. But in all cases they have to act through actual living people. Or they have to act through another business entity, like a trustee, which in turn is acting through actual living people.
So in a normal trust situation the comment from the “trustee” bank — Wells Fargo Bank, Bank of New York Mellon, U.S. Bank. etc. — would be true. The law requires third parties to deal with the trustee on all matters relating to the trust. Therefore title is held in the name of the trustee but solely for the trust and for the beneficiaries of the trust.
Today the beneficiaries of the trust are concealed. In most instances involving a REMIC trust the beneficiary, buried deep within an actual trust agreement that is concealed from third parties, is an investment bank. It is not the certificate holders — although disingenuous argument and assertions from counsel for claimants would have you and the court believe otherwise.
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But all of that is smoke and mirrors. in all probability your loan was never entrusted to Wells Fargo Bank for the benefit of beneficiaries of the trust that is named as the claimant. In order for your loan to have been entrusted to Wells Fargo Bank, a settlor or trustor would have had to convey the debt and the loan documentation to Wells Fargo Bank.
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In order to convey the debt, the trustor must have owned the debt by reason of having paid for it. Without that ownership the settlor or trustor is not conveying anything and is not a settlor or trustor even if they are named as such in a trust instrument. The only other alternative is that the trustee Bank, using trust assets for payment, was the purchaser of your loan, including the debt note and mortgage. Neither of those things happened.
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The truth is that the name of the trustee bank is rented to give an institutional flavor to an illicit scheme. The trustee is not allowed to do anything. It is not a trustee even though it is named as such in a trust instrument. This is congruent with most other fabricated documents currently used for the last 20 years — naming of entities as though they were acting in certain roles when in fact they were not so empowered. But if you don’t point it out, the court will assume that a trustee is a trustee, an assignee is an assignee, an assignor is an assignor and a lender is a lender instead of a pretender lender.
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As per the nature of securitization of Mortgage Debt as it has been practiced for the last 20 years, it is almost impossible for those conditions to have been met. So the statement from Trustee bank is theoretically true, but it is misleading and untrue.
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If there was an asset actually in the trust, the trustee bank statement would be true. But in all probability no such asset exists within the trust. Therefore the implied statement from “trustee” bank is false, to wit: that that the named “trustee” Bank holds title on behalf of the trust which owns the asset.
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Keep in mind that under Article 9 § 203 of the Uniform Commercial Code as adopted by all of the state legislatures, a condition precedent enforcement of a security instrument (like a mortgage or deed of trust)is that the claimant must have paid value for the debt.
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It is insufficient to merely have paperwork indicating a transfer of ownership, although such paperwork gives rise to the presumption that the holder of the paperwork has in fact paid the debt. An assignment of mortgage without an actual purchase of the debt for value is a legal nullity.
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The problem for homeowners is that this presumption prevails in the absence of rebuttal. But rebuttal is actually easy, as long as you do it in Discovery and not try to do it at trial. While attempts to reveal the absence of an actual purchase of the debt at trial are sometimes successful, most cases that have been won by homeowners had a successful result because they asked the simple questions relating to the non-existent transaction in which the debt was supposedly purchased. Waiting for trial requires considerable skill at cross examination and a good bit of luck.
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Filed under: foreclosure |
Sometimes too complicated. Agree, but if you don’t eliminate the weeds, you will not get green grass. .
Trustee is supposed to be legal holder, by law if it is a valid securitization. They are nowhere to be found as to representation in foreclosure. Servicer is the only party representing. for undisclosed debt buyer. Servicer takes control and adds trustee name to the trust name to pretend the trustee (bank) is involved and give them credibility in court. Trustee holds nothing. . There is NO BANK involved.
You did not post my last comment on this Neil. Its okay. But when I see no comments, you need feedback. I give feedback.