What Questions Should I Be Asking?

Why is everyone using your name in foreclosures?

A client who is pursuing an action against Bank of New York Mellon is properly refusing to admit or acknowledge that a trust exists and even if it does whether the trust has ever owned the debt — because without the debt a conveyance of an interest in the mortgage or deed of trust is void ab initio.

So he asked me for suggestions to give to his attorney as to what questions to ask BONY, formally and informally. Each of these obviously needs some understanding as to why the question is being asked. That is why we have a series of online webinars coming out.

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Is Bank of New York Mellon the plaintiff in this case  filed in nj superior court docket …. ?

If not, is a trust the Plaintiff in that case?
If a trust,
  • What is the name of the trust?
  • When was it created?
  • Where was it created?
  • Who authorized its creation?
  • Who was the trustor?
  • Who was the settlor?
  • What was the res of the trust at time of creation?
  • What has been entrusted to BNY to hold in trust for beneficiaries of the trust?
  • Were certificates issued by the trust?
  • Were money proceeds from sale of certificates received by BNY in trust for beneficiaries of the trust?
  • Were the buyers of certificates issued in the name of the trust beneficiaries of the trust?
  • Can I have copy of the trust agreement in which the trust was created?
  • Describe the BNY relationship, if any, to the attorneys seeking foreclosure in the above case.
  • Describe the BNY relationship, if any, to the investors who purchased certificates issued in the name of the claimant in the above case.
  • Is the above-named claimant the same entity as the trust?
  • Has BNY or the trust ever received any money proceeds from foreclosures in the name of the claimant named “Bank of New York Mellon, as trustee for [fill in the complete name of the named claimant]….”
  • If BNY or the trust did not receive the proceeds of foreclosure, who did?
  • As of the time of the credit bid at auction on the __ day of ____, 20__, had BNY paid value for the debt in exchange for ownership of the debt on behalf of itself?
  • As of the time of the credit bid at auction on the __ day of ____, 20__, had the trust or anyone on behalf of the trust paid value for the debt in exchange for ownership of the debt on behalf of itself?
  • Did BNY authorize the credit bid to be submitted on behalf of the named claimant as described above?
  • Has BNY ever received the proceeds of payments on the subject loan?
  • Has BNY ever received or disbursed any money in connection with the subject loan?
  • Describe the BNY role, if any, in relation to the subject loan. If making reference to a document please identify the portions of the document that describe the role of BNY.
  • Describe all documents that were reviewed or used including screenshots in digital form that were used to answer these questions with sufficient specificity such that they can be sufficiently identified in a request to produce.
  • Describe any settlement, including but not limited to money received, in which BNY or the trust received funds in connection with the origination,,underwriting, servicing, collection, administration or enforcement of the subject loans or any loan in which this named claimant was specifically named as a beneficiary of such settlement.
  • Describe any agreement by which BNY is indemnified or held harmless from claims arising out of the subject loan or any loan in which the above named claimant’s name was used to sell certificates or in which that name was used in instruments that recited a conveyance of an interest in a mortgage, deed of trust or promissory note.

Practice hint: Don’t even assume you actually know the name of the purported trust. It is highly probable that the named claimant is just that — a name, that happens to include the name of BONY Mellon or US Bank or Deutsche, but does not include any active role for them as banks, trustees, or even clearinghouse. But they might also be designated in a corridor agreement in which their role as a sham conduit is explained in detail. see https://www.lawinsider.com/contracts/dSu5MtwMEFKTTYLOTpEZs/cwabs-asset-backed-certificates-trust-2006-11/corridor-contract-administration-agreement/2006-08-08

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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