Is it a trust or not?

As it relates to ownership of the subject underlying debt in a claim for foreclosure it is almost certain in every case that no trust exists.

As it relates to ownership of some hypothetical interest in something that has nothing to do with the foreclosure, it is possible that a successful argument can be made for the existence of a trust, assuming the necessary elements are present.

You need to know the legal elements of a trust entity that can be recognized at law. Every trust must have these elements.

  • Trust agreement
  • A trustor or settlor
  • A trustee
  • Beneficiaries who are identified and named
  • Some legally recognized interest, property or investment that has been entrusted to the trustee to manage on behalf of the beneficiaries. (also known as the res — the thing).
In most cases a trust agreement exists but is not disclosed. That is because the beneficiaries are identified as investment banks. The trust agreement also reveals that the trustee and the trust only have an interest in the title documents naming the trustee for the trust.
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The trust agreement specifically disclaims any right, title or interest in any claim or obligations arising from such documents. That means there is an express written disclaimer of any claim against any homeowner. This in turn means that neither the trustee or the trust can legally claim to possess legal standing unless you tacitly or overtly admit it. If you are deemed to have admitted anything about the existence and relevancy of the trust the judge has no choice but to treat it as a trust — probably a trust that owns your underlying obligation.
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So instead, the Foreclosure Mills use pooling and servicing agreement that they referred to as a trust agreement. But it is not a trust agreement if it does not contain the required elements of a trust. So instead, the Foreclosure Mills use a pooling and servicing agreement that they refer to as a trust agreement. But it is not a trust agreement if it does not contain the elements referred to above.
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But if you refer to it or accept it as a trust, the judge has virtually no discretion. If both sides agree it is a trust, then for purposes of the case, it is a trust.
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Practice Hint: Don’t admit or refer to the claimant as a trust. Either the trust does not legally exist or it barely exists but that fact has no relevance to ownership of your obligation. The presumptions arising from apparent possession of the promissory note are easily defeated if you do not admit the existence of the trust and if you demand a copy of the signed, dated trust agreement.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate 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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2 Responses

  1. Correct Summer — and try to tell a judge that. Judge believes the other side. They believe the “Trustee” is there. I have seen it – over and over and over again. They are not there. I know it. And, you have no say. These are constitutional rights violated. And, who does anything? No one. Legi is correct on case law. Legi just does not know – the case law is WRONG. Government allowed it knowing it is wrong. And, Neil — you have to rely on case law. You don’t do that — not good. Legi is correct on that. Legi is wrong that case law is correct. Why? No cases traced to prior transaction. But it stands. Once that starts being exposed – whole different ball game. But I am just an idiot. I can say this until the cows come home — if you don’t research — you don’t understand.

  2. In foreclosures mill the named “Plaintiff” – who is acting as a Trustee for the Trust (US Bank, Bank of New York and other scammers) does not even know that they are Plaintiffs in most cases, if not all of them.

    Lawyers hired by Wall Street Banks via Black Knight MSP or CoreLogic’s VendorScape lie to Judges about representing “Trustee” with whom they do not have contract since all instructions are provided to them via email by someone else.

    And if you demand these lawyers to provide you a proof of authority to represent this “Plainitff” – they cannot even tell you who is their point of contact with the Trustee.

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