Note how easy it is to skip over the initial paragraph which defines the context of the entire agreement. it is predicated in an event in the future. All representations, warranties, duties and obligations arise only if and hen the condition subsequent occurs.
see the following: [Hint: None of this matters until AFTER loans are “acquired”. Legal acquisition of a debt occurs in only one way: PAYMENT in exchange for conveyance of ownership]
| WELLS FARGO BANK, N.A.,as RMBS Master Servicer AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-2,as Issuing Entity DEUTSCHE BANK TRUST COMPANY AMERICAS,as Indenture Trustee AMERICAN HOME MORTGAGE ACCEPTANCE, INC.as Sponsor and AMERICAN HOME MORTGAGE SERVICING, INC.as RMBS Servicer |
| RMBS SERVICING AGREEMENT Dated as of June 30, 2006 |
| Mortgage Loans American Home Mortgage Investment Trust 2006-2 |
TABLE OF CONTENTS
| ARTICLE IDefinitions | |
| Section 1.01 | Definitions. |
| Section 1.02 | Other Definitional Provisions. |
| Section 1.03 | Interest Calculations. |
| ARTICLE IIRepresentations and Warranties | |
| Section 2.01 | Representations and Warranties Regarding the RMBS Servicer. |
| Section 2.02 | Existence. |
| Section 2.03 | Enforcement of Representations and Warranties. |
| ARTICLE IIIAdministration and Servicing of Mortgage Loans | |
| Section 3.01 | RMBS Servicer to Act as RMBS Servicer. |
| Section 3.02 | Subservicing Agreements Between RMBS Servicer and Subservicers. |
| Section 3.03 | Successor Subservicers. |
| Section 3.04 | Liability of the RMBS Servicer. |
| Section 3.05 | Assumption or Termination of Subservicing Agreements by RMBS Master Servicer. |
| Section 3.06 | Collection of Mortgage Loan Payments. |
| Section 3.07 | Withdrawals from the Protected Account. |
| Section 3.08 | Collection of Taxes Assessments and Similar Items; Servicing Accounts. |
| Section 3.09 | Access to Certain Documentation and Information Regarding the Mortgage Loans. |
| Section 3.10 | Maintenance of Primary Insurance Policies; Collection Thereunder. |
| Section 3.11 | Maintenance of Hazard Insurance and Fidelity Coverage. |
| Section 3.12 | Due-on-Sale Clauses; Assumption Agreements. |
| Section 3.13 | Realization Upon Defaulted Mortgage Loans. |
| Section 3.14 | Indenture Trustee to Cooperate; Release of Mortgage Files. |
| Section 3.15 | Servicing Compensation. |
| Section 3.16 | Reserved. |
| Section 3.17 | Reserved. |
| Section 3.18 | Optional Purchase of Defaulted Mortgage Loans. |
| Section 3.19 | Information Required by the Internal Revenue Service Generally and Reports of Foreclosures and Abandonments of Mortgaged Property. |
| Section 3.20 | Fair Credit Reporting Act. |
| Section 3.21 | Waiver of Prepayment Charges. |
| ARTICLE IVServicing Certificate | |
| Section 4.01 | Remittance Reports. |
| Section 4.02 | Reserved. |
| Section 4.03 | Reserved. |
| Section 4.04 | Advances. |
| Section 4.05 | Compensating Interest Payments. |
| Section 4.06 | RMBS Servicer Compliance Statement. |
| Section 4.07 | Report on Assessments of Compliance and Attestation. |
| Section 4.08 | Attestation Reports. |
| Section 4.09 | Annual Certification. |
| Section 4.10 | Intention of the Parties and Interpretation. |
| Section 4.11 | Indemnification. |
| ARTICLE VThe RMBS Servicer | |
| Section 5.01 | Liability of the RMBS Servicer. |
| Section 5.02 | Merger or Consolidation of or Assumption of the Obligations of the RMBS Servicer. |
| Section 5.03 | Limitation on Liability of the RMBS Servicer and Others. |
| Section 5.04 | RMBS Servicer Not to Resign. |
| Section 5.05 | Delegation of Duties. |
| Section 5.06 | Indemnification. |
| Section 5.07 | Duties of the RMBS Servicer With Respect to the Indenture. |
| Section 5.08 | Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations. |
| ARTICLE VIDefault | |
| Section 6.01 | Servicing Default. |
| Section 6.02 | RMBS Master Servicer to Act; Appointment of Successor. |
| Section 6.03 | Reserved. |
| Section 6.04 | Waiver of Defaults. |
| ARTICLE VIIMiscellaneous Provisions | |
| Section 7.01 | Amendment. |
| Section 7.02 | GOVERNING LAW. |
| Section 7.03 | Notices. |
| Section 7.04 | Severability of Provisions. |
| Section 7.05 | Third-Party Beneficiaries. |
| Section 7.06 | Counterparts. |
| Section 7.07 | Effect of Headings and Table of Contents. |
| Section 7.08 | Termination. |
| Section 7.09 | No Petition. |
| Section 7.10 | No Recourse. |
| Section 7.11 | Consent to Jurisdiction. |
| Section 7.12 | Certain Terms Concerning Indenture Trustee. |
[TO BE UPDATED] EXHIBIT A – MORTGAGE LOAN SCHEDULE EXHIBIT B – FORM OF REQUEST FOR RELEASE EXHIBIT C – FORM OF CERTIFICATION TO BE PROVIDED BY THE RMBS SERVICER EXHIBIT D – LOAN LEVEL FORMAT FOR TAPE INPUT, RMBS SERVICER PERIOD REPORTING EXHIBIT E – REPORTING DATA FOR DEFAULTED LOANS EXHIBIT F – CALCULATION OF REALIZED LOSS/GAIN FORM 332 – INSTRUCTION SHEET EXHIBIT G – SERVICING CRITERIA
This RMBS Servicing Agreement, dated as of June 30, 2006, among Wells Fargo Bank, N.A., as RMBS Master Servicer (“RMBS Master Servicer”), American Home Mortgage Investment Trust 2006-2, as Issuing Entity (the Issuing Entity”), American Home Mortgage Acceptance, Inc. as Sponsor (the “Sponsor”), American Home Mortgage Servicing, Inc. as RMBS Servicer (the “RMBS Servicer”) and Deutsche Bank Trust Company Americas, as Indenture Trustee (the Indenture Trustee”).
W I T N E S S E T H T H A T : WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement, American Home Mortgage Securities LLC (the “Company” or “Depositor”) will acquire the Mortgage Loans;
What is the condition subsequent? — acquisition of loans. What does the agreement do? Nothing until the loans are acquired.
When are the loans acquired? Never.
Where can this agreement be found? Sec.gov. Why was it uploaded? So lawyers in foreclosure cases could claim judicial notice of what appeared to be a government document when in fact the investment banks were taking advantage of a loophole that allows them to upload documents that are not reviewed, approved or controlled in any way.
Bottom Line: Before you start analyzing the document read the beginning. If it refers to an event that is not recited as having already occurred, or a transaction that is not specifically identified such that one could easily determine if the event had already occurred, then read no further. the document is worthless unless and until evidence is introduced proving that the event occurred.
The only proof that matters is the payment of value for the underlying debt or obligation. No such transaction exists because the only people who paid value were investors and all they received was an unsecured IOU (certificate/mortgage bond) from the investment bank. They did not receive ownership or any right, title or interest to any loan because they didn’t want it.
The same is true for the investment bank and everyone else. That is why they can claim they are not lenders and therefore not subject to claims of violations of lending laws. And THAT is why if you ask for proof of purchase of the loan you will get nothing but obfuscation and lies.
The same lesson holds true for “servicer” records. Are they the servicer? Only if they are administering a credit account for a creditor. If there is no account there is no creditor. If there is no creditor there can be no servicer. If there is no account there can be no claim of loss in that account.
*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*
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Filed under: foreclosure |
Depositor is not identified here, must go to actual prospectus to see the Depositor. Then have to go SEC letters. From one letter —
1. When referring to transaction parties, please use the terminology set out in Regulation AB. Please refer to Item 1101(f) of Regulation AB for the definition of issuing entity and revise to refer to the issuing entity, as opposed to the trust.
Although registration after instruction was “proposed”, all further registrations ceased.
Next go to PSA — as to REMIC formation — you will find multiple REMICs, and REMIC residuals not offered for security sale. These, in effect, are a “back door.”
According to rules for Regulation AB – which was a pilot program – the “ultimate pool” cannot be segregated into separate pools and REMICs. These rules were established in late 2005, And, they were amended in 2014 — years later.
So if it quacks like a duck, and walks like duck — it is supposed to be a duck. Multiple REMICs under one “series name” were not real ducks under Reg AB – even though tried to quack like one. .
The PSA above says that the “Depositor will acquire the Mortgage Loans.” But it doesn’t say that the “Seller will acquire the Mortgage Loans.” This makes sense to me, because the Depositor will be acquiring the mortgage loans from the Seller. So there is really no “there,” “there,” and you will get no traction with that one in court.
Now they don’t claim to be a HIDC because they would have to show that they paid value for the notes that memorialize the loans or debts. And that means that in discovery, or pursuant to a subpoena, they would have to show their accounting records and the real entity from whom they acquired the notes/loans. So since they don’t want to show who the guy is that is hiding behind the curtain, they never claim to be a HIDC. But they don’t have to be a HIDC to enforce the note and thus the mortgage. They merely have to show that they are A HOLDER. And virtually every time, they do show that.
Great post Neil, and explained succinctly. This makes the whole scheme even more of a crock than I had thought up until about 15 minutes ago before I read the post.