Livinglies's Weblog

What exactly does U.S. Bank, Deutsch Bank or Bank of New York Mellon “as trustee” do for “REMIC Trusts”? It might be as simple as nothing at all.

Back in the early stages of the mortgage meltdown, judges were more open to challenging claims from servicers or MERS. Foreclosure lawyers were attempting to name claimants that by definition had no interest in the transaction with the homeowner. Back then when homeowners were screaming that there were trusts who owned the loans and that they had a right to know which one. The foreclosure mills denied the existence or relevance of the trusts. It became big business for people like me to identify such trusts.

But because claims from MERS and companies calling themselves “Servicers” were losing traction. So the foreclosure mills did a 180-degree turn and started naming banks as trustees of an implied or stated trust entity as though one existed.

Such banks are real, but in the case of Deutsch Bank people often don’t realize that while they are saying and referring to the institutional giant, the actual party named is Deutsch Bank National Trust Company — a California company acquired by the commercial bank.

In any event, the question is whether the words “as trustee” are meant to convey anything real or are just window dressing on a fraudulent scheme that requires deceit, theft, fraud on the court, and misleading homeowners from start to finish. Obviously, I think it is the latter, so let’s look at this issue.

See https://www.floridabar.org/the-florida-bar-journal/the-trust-beneficiarys-right-of-access-to-information/

If you wrote down the name of a trust, it must refer to a legally recognized entity. If you don’t do that, you might just as well make up a fictional character that you created in your imagination and try to convince the judge that the character is real and has a claim. Good luck — unless you are a bank.

That recognition of status a legal entity or “legal person” is a fiction that comes from either statute or common law and sometimes both. And you can’t simply say there is a legally existing trust. You must present a valid legal entity organized and existing under the laws of some jurisdiction that recognizes the trust name as the name of an entity. Other than foreclosure actions that name REMIC trusts, any claim of a trust brought in court must identify the trust as to its status of the organization and current existence. That is true for all legal fictions that are granted the status of a “legal person.”

So the first mistake often made is that when the foreclosure lawsuit is styled as” U.S. Bank, as trustee for SASCO trust 2006-1a, on behalf of the registered certificate holders of pass-through certificates series SASCO Trust series 1a”, most people fail to recognize that they have not been told anything about who is making the claim. That means the lawsuit (or notice of substitution of trustee, a notice of default, a notice of sale) is facially invalid. No defense is necessary until a court determines what to do with the facially valid lawsuit or claim.

• Is the claim brought on behalf of U.S. Bank? No, it is brought in a representative capacity — or so it is said by lawyers who actually have never spoken with anyone from U.S. bank and who do not represent U.S. Bank; although filing the suit naming U.S. Bank implies that the lawyers represent U.S. Bank, there is no such relationship but lawyers are protected by litigation immunity. So U.S. Bank is not the actual “party Plaintiff” or “party claimant.”
• Is the claim brought on behalf of a need trust organized and existing under the laws of some recognized legal jurisdiction? We don’t know, which is part of what makes the claim facially invalid — although theoretically capable of correction through the affidavit f someone with personal knowledge and who can say that SASCO Trust 2006-1a exists pursuant to a Trust agreement (always an absolute requirement for the existence of any trust). Upon presentation of the trust agreement as an exhibitor or by reference to a recorded official document in the public domain, signed, sealed, and delivered, we can accept that the “REMIC Trust” is supported by the most basic requirement of creating a trust.
• Is the claim brought on behalf of the registered holders of those certificates? If yes, why mention that trust, and do we not now have a conflict between a barely identified trust and unidentified holders of unidentified certificates? A motion to dismiss or Motion for More definite Statement would be in order. Pushing the envelope one might try a motion to quash service saying that the service was on behalf of an unidentified, facially invalid or nonexistent entity.
• The claim must be for the trust or for the certificate holders. Not both. If it is for the trust there is no need to mention the certificate holders. If it is brought for certificate holders, then there is no need to mention the trust — but there is a need to identify both the certificates and the certificate holders for the claim to be legally recognized and adjudicated in any state — judicial or nonjudicial.
• Does U.S. Bank say it has the right, power, or duty to represent the certificate holders? The answer is no according to none other than U.S. Bank when certificate holders brought suit alleging exactly that. That answer was corroborated by multiple courts in a variety of different settings in state, federal and tax courts. So the foreclosure mill (lawyers who appear in court without any named client) is taking the exact opposite of the legal position, sustained by the courts, of U.S. Bank “as trustee.”
• Does U.S. bank have the right, duty, or obligation to represent the named “trust” (assuming the rust exists)? The answer is no, according to both the trust agreement if you can force them to produce it, and the pooling and servicing agreement, which is basically a usually unsigned, incomplete projection of future vents that never occur. Not only does the named trustee lack any powers to administer the active affairs of the trust, it also would be in contractual violation if it even asked to view the affairs. This is the opposite of any definition of any trustee.
• Is there named a trustor or settlor? The answer is no. So any question of whether the named trustee has ever received anything from any third party to hold in trust for the beneficiaries of the named trust is answered first by pointing out that no such third party has ever been identified. Even a trust agreement or statement of trust that checks all the boxes for drafting such an instrument has no effect unless something of value has been trusted to the named trustee to hold and administer on behalf of the named beneficiaries in the trust agreement.

So in practice, one of the ways to reveal all of that is to issue proper and timely discovery demands, qualified written requests, debt validation letters, and to follow up with enforcement of those demands. Another way is to “blow-up” the robo witness from the self-proclaimed servicer at trial (frequently works if the lawyer is skilled at cross-examination).

The key is to get someone who actually works at U.S. Bank and start asking questions about how they handle money, assets, reporting, and filing on behalf of the trust — all obvious functions of any real trustee. You will find they have no answer and refuse or stonewall any subpoena or request for someone who does have the answer. And that is because there is no answer.

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• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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