Suing the REMIC Trustee is a good idea but it is tricky

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All causes of action against the REMIC trustee are going to be tricky. By contract, they have no duties and no responsibility for anything that happens with the trust. In court, they never actually appear. A lawyer shows up and says he represents Bank of New York Mellon, not on its own behalf but as trustee for the XYZ Capital Trust 2, Inc. Trust, on behalf of the registered holders of certificate series 2007-A1.

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So, ahem, which one of all those entities hired him to appear in court? The surprising answer: NONE. The lawyer received electronic instructions on a computer screen without any knowledge as to the source and was allowed to assume that it had come from the company claiming to be a servicer when in fact they had never issued any such instruction because they were not allowed to do so by contract or statute.

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So when you sue the trustee the lawyer (who is not really their lawyer) is going to say BONY did not do anything, had nothing to do with the court action and was contractually prohibited from performing any trustee duties including but not limited to the administration, collection or enforcement of any claim. But so far they have not even needed to say that because all the attention goes to whether any cause of action has been properly stated against the trustee.
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What did the trustee do wrong? I say everything and they say nothing. I say they rented out their name for a royalty payment for the sole purpose of giving the enforcement actions the intentionally false impression of an institutional gloss. They will say, well that was not our purpose, because we have nothing to do with enforcement. And my response is that you knew or must have known that the enforcement action would be presented as BONY Mellon vs homeowner and that such caption was misleading because you had not and could not have authorized any attorney to appear on your behalf nor any attorney to appear on behalf of any trust. You are an accomplice to outright fraud on homeowners, on taxpayers and the courts.
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This same problem exists with all the securitization players and all of the other foreclosure players going out in layers like an onion. They all have some form of plausible deniability. But under the doctrine of res ipsa loquitor (the thing speaks for itself) — if you sue them all — and if you prove that there was no legal claim, you can sue for conspiracy to abuse legal process, uttering false instruments, recording false instruments, harassment, interference with the homeowners right of contract with the original lender or any legal successor thereto, forgery, negligence, intentional infliction of emotional distress, common law compensatory damages, statutory damages, possible punitive damages and potentially attorney fees and costs. There are more contractual and tort claims as well as breaches of common law duties that are not well defined but which still can be alleged as torts without a name.
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The potential judgment on such suits, collectively, as class action or as qui tam, might be in the trillions of dollars.  And yet even the greediest lawyers refuse to take up this cause. I can virtually guarantee that once a proper complaint is drafted and makes it through the motion to dismiss and  discovery starts rolling, there will be settlement offers and as usual, my advice is to wait until the “third final offer.”

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PRACTICE HINT: If in litigation aggressively pursue the named REMIC trustee to produce an officer who will acknowledge the actions of others on its behalf. When they refuse the judge will start wondering what is going on. Especially when U.S. Bank, for example, refuses (as it always does) to actually say they are the client of the lawyer who is litigating the foreclosure action. That produces good grounds for striking the notice of appearance by the lawyer. His (client” has disavowed any action taken by him/her. 
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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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One Response

  1. So – if you are paying, the “trustee” who is supposed to be, by law, the legal holder for ANY trust, claims to NOT hold mortgage or note. Thus, you have no legal holder. But, if you go to foreclosure, suddenly the “Trustee” is in possession of claimed note. Can anyone explain this?

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