If they are not a trustee, why do they say they are?

It is often true that BONY, Deutsche, or US Bank et al will refer to themselves as “trustee” in the context of a REMIC trust that actually may not exist.
They are merely following the party line for which they are being paid. They have agreed to being titled as a trustee so they are only saying that because they were titled as such they are a trustee. It is circular reasoning. But there is a grain of truth to it. The real trust agreement that normally nobody sees says when an instrument of conveyance names them as trustee that contractually they are to hold bare legal title for the benefit of the investment bank. Considering other elements of the law it is doubtful but not assured that the naming of the bank as trustee creates a trust and an asset to be managed by the trust. But if it does then technically — very technically — they would be a trustee.


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But that is VERY different from being a trustee for investors, certificate holders or anyone else. And THAT means that the naming of BONY as trustee for certificate holders OR for any trust is bogus. While under the above analysis BONY might be a trustee for the investment bank over the bare legal title to the mortgage, it is not a trustee for the certificates, the certificate holders, or the debt. That means makes it ineligible to assert any claims for payment because BONY clearly never paid for the debt, which means it could not own the debt.
Further without having paid for the debt, the conveyance to BONY is a legal nullity since a conveyance of a mortgage without the debt is void.
The problem for litigants is that it is generally held or assumed that the conveyance raises a legal presumption of transfer of the debt, which is why homeowners must rebut that presumption with appropriate and aggressive discovery demands as to any financial transaction in which the debt was the subject of a payment of value in exchange for ownership of the debt.

14 Responses

  1. WOW Poppy – what a story.

    Roger – this Post by Neil is like the old days – everyone wants to respond. Topic -“If they are not a trustee, why do they say they are?” – is at the heart of most problems.

    Why haven’t our representatives stepped in is a good question Roger. I would assume that they want the donations from the fraudsters.

    Bob G — I think you are right. The Courts treat as a debt. The note is supposed to be promise to pay the mortgage (security). But if there is no real mortgage, there is no real “negotiable” note. While one may perceive the note as a “debt” – it should not be a “default debt’ – which is what they crisis loans were from onset. How that “debt” is transferred is not by negotiation but by assignment, and the law under the FDCPA. The current creditor must be disclosed. They never are, because there was no consideration , and Courts rarely question. Our representatives ignore.

    What I chronically hear from a friend who is in investment business – NO ONE CARES. That person get tired of my endless talks of the fraud.

  2. Glad you’re all enjoying the links. Kali: Wisconsin just took the money and absconded it. I keep asking my representatives “Where’s the $31 MILLION?”
    “We’ll call you back.”

  3. ukg…this is not the first incident of dead bodies in a property. I speak because people should know. In 2016 I was looking for a small house for my elderly aunt to relocate in Charleston, SC. We purchased a home that an elderly woman left, to go into a nursing home. After she moved into the nursing home and the son didn’t pay the bills, he was subsequently evicted and they eventually foreclosed on the property. Well, a realtor named Crabtree handled the management of this property. I bid on the property for my aunt and we got the property. Upon getting keys at closing, my son and I entered the house to see what TLC needed to be done, for her to move in. Upon opening the door the stench was over-powering. Walked to the hallway and secondary bedroom and a body was lying on a mattress. At first we were confused and thought he made be drunk or passed out…after closer observation he was dead, decomposing, and had been locked-padlocked in the property. (never knew what the smell was, unfamiliar with decomposition-odor). Police were called, we spent 8 hours there with the coroner, forensic team, detectives, EMT’s, wow. The property should have been checked, by the property manager, Crabtree. No one knew if the man died due to falling ill and unable to get help or they locked him in after he died…these people are trash. All can be verified.

  4. @ ALL

    Confirming EVERYONE’s general inference on the all-levels corruption, particularly on the national mortgage settlement intended by each state’s Attorney General(s) to assist homeowners:

    “Costs mount for California’s improper diversion of foreclosure aid”

    “Nearly six months later, the program still has not been established.

    The Legislature passed a bill in the fall stating its intent to “create a trust to manage these funds,” which Newsom signed in October. In his budget proposal this month, he said his administration was “exploring, with input from stakeholders, ways to establish and manage a trust.”


  5. All of these progressive Lefties have their hands in the cookie jar.
    So, how are they different?


  6. Summer is right – housing market is a mess. All handled WRONG at crisis exposure. This was nothing more than Madoff magnified to the hilt. But, they chose to “cover it up.” And, to let people battle themselves in courts of law. The power is immense. Actually feel sorry for Madoff – he took the hit when others should have been hit much harder. .

    Enough. We have had enough. Who keeps getting richer? Those who committed the crimes. Incredible.

    Discovery is difficult. They will object to Rogs and Demands. Then you must compel, and judge not on your side. Why should he or she be? Nothing in it for them.

    I have had depositions held in abeyance for years upon years. Never to occur. And, no help from authorities. Why? In litigation — ohh – forever. That is one of their strategies.

    If the government does not get this — and I am sure they do — it will escalate. What goes up – must come down. Down it will come.

    My state pushes foreclosures — to turn into low income housing. That is their goal. They do not care about fraud. They do not care about you. People do the votes.

    Unfortunately, votes still are heavily prevalent upon social issues – we all know primary social issue – that is not relevant to the issues that need to be addressed. Need to get head out of social issues. .Simply another “industry.” Go to rallies and express YOUR concerns. Get social agendas off the plate.

    Coronavirus – and stock market still rallies? For real?? But coronavirus should not be the cause to take down market. Market has been propped up since crisis by low interest rates. Cycles are not naturally happening as they should. If they had, government would be there for the people. All is controlled. Future consequence will be devastating to all. Take heart.

  7. My aggressive discovery (actually, a routine debt validation request to a new “Servicer”) resulted in a mess.

    PennyMac (fna Countrywide Financial) somehow managed to “issue” securities backed by Ginnie Mae – without Ginnie Mae’s knowledge.

    Ginnie Mae insisted that securities were issued by Caliber Home loans, Inc (dna Countrywide Financial). Caliber deny any involvements except servicing my loan for Ginnie Mae….

    The “Trustee” BONY has no idea who issued securities backed by Ginnie Mae and stood for PennyMac lies.

    Now PennyMac since mid December (!) try to fabricate me another lie how they issued Ginnie Mae’s Trust (name of which nobody knows) securities 3 years later any Trust closing day (which nobody knows) – in violation of IRS and Ginnie Mae rules and without Ginnie Mae’s approval and registration. .

    No need to say, PennyMac cannot provide me a basic answer – from WHOM they purchased my debt if Caliber (the prior Servicer) said they didn’t own it.

    What a mess is American housing market!

  8. “homeowners must rebut that presumption with appropriate and aggressive discovery demands”.
    This strategy may buy some time, but the reality is that even with a Court system/Judge that may favor a homeowner from time to time, all one can hope for is a settlement with the fraudulent “lender of the day”.
    What good is expensive, aggressive, time consuming discovery that proves to the Court that the “lender of the day” does NOT own the debt?
    The homeowner may be lucky enough to get a settlement agreement from that “discovery” however, in the end, in order to settle the case, the homeowner has to acknowledge that the Banksters indeed own the debt. Otherwise you don’t get a settlement. We are chasing our tails here. This is just crazy.

  9. “a debt, not the debt”… Then “unsecured” debt…nothing attaching the note-mortgage to the property. Judges have it wrong.

  10. Ok – so is the mortgage holder in terms of title ? Title demands a mortgage holder. The master servicer ? What if there is no default ? Or are all these loans internally reported in default as I have been told and suspected ?

  11. the problem is that courts treat the note as the debt, rather than what the note really is…a piece of paper that merely memorializes the actual debt.

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