Livinglies's Weblog

The mistake that lawyers and pro se homeowners are lured into making is that they think that the pooling and servicing agreement is the trust agreement. It isn’t.

Alan Greenspan assumed that free-market forces would make the correction if Wall Street was doing something stupid. He later admitted his mistake. But the courts are repeating and magnifying the mistake partly out of ignorance and partly because the lawyers and pro se homeowners are ignorant and have presented the wrong challenge to foreclosure.

 

We lawyers tend to use terms that are recognizable to each other but mean nothing to people who are not lawyers. One of those terms is “bare naked title.”

Anybody can sign a deed. And the wording of the deed will usually refer to a particular piece of property or an interest in that property. If the deed is being recorded the statute requires an identification of the person who is supposedly granting title and an identification of the person who is receiving it.

As long as the deed conforms to the requirements of the recording statute, the clerk of the recording office has virtually no discretion about whether to allow the document to be recorded — even if the clerk has substantial and reasonable doubt that the deed was executed by a person who possessed legal title to the property.

Many recording officers across the country have expressed concern about the statutes because they know they are recording documents that are only clouding title or making them completely unmarketable. Even in cases where the wording of the deed clearly conflicts with prior documents that were recorded in the chain of title, the county attorney will ordinarily have the opinion that the clerk has no discretion and that the document must be recorded.

And that procedure is what has been Weaponized by Wall Street. Instead of vetting the instruments or requiring additional proof before a document is recorded, the burden is shifted onto people who were adversely affected by the false document.

Bare Naked legal title means that the holder has received a document that says it is transferring title — but the grantor does not possess title. Therefore no legal title was passed. Google “‘wild deed”. Most documents in securitization lack a grantor who owns anything.

But with the document recorded, it is presumed to satisfy the formal requirements of a proper transfer and everything on it is presumed to be true. However, most such documents ordinarily, in custom and practice contain a warranty of title or some positive assertion of title rather than an implied reference that one might interpret to mean that the grantor had legal title.

Look carefully. You will not find any such warranty of title because the players know that is a false representation. By merely implying title, the burden of proving fraud by clear and convincing evidence becomes nearly impossible. Anyone can deny an implication by asserting plausible deniability or “that’s not what we meant.”

Why is this important? Because if lawyers and pro se homeowners were able to get their hands on the actual trust agreement involving a so-called REMIC trust, they would find that the trust agreement often expressly states the trustee only has Bare naked title, without any interest in any debt, note or mortgage.

And that is exactly why the proceeds of foreclosure are never paid to the trustee or the trust even though they were made the claimant or plaintiff. And that is precisely what state law in all US jurisdictions is designed to prevent: article 9 section 203 of the uniform commercial code has been adopted in all US jurisdictions verbatim. It requires that anyone wishing to make a claim on a security instrument (which includes mortgage or deed of trust) must’ve paid value for the underlying obligation.

This is one of the areas that the investment banks have Weaponized because of issues that have never been previously explored. It was always theoretically possible to purchase a note or mortgage without purchasing the underlying obligation. Sometimes this is referred to as “splitting” in legal literature. But ordinarily, nobody has done that intentionally because there was no business reason to do so.

The geniuses on Wall Street realized that if they sold the enforcement rights without the obligation, and then sold bets on the performance of those enforcement rights, they could never be accused of selling the underlying obligation to more than one person and therefore face charges for fraud.

Their problem was that the statute was very clear on the issue of enforcement of mortgages. There the debt had to be sold. So they cured that problem with the bunch fake documents, again pushing the burden onto unsuspecting homeowners to figure out a scheme that not even the Federal Reserve was able to understand using hundreds of PhD’s and lawyers.

It just never occurred to them (until it was too late) that the claim was false — i.e., that no debt was being securitized and that the only thing securitized was the right to enforce it.

Alan Greenspan assumed that free-market forces would make the correction if Wall Street was doing something stupid. He later admitted his mistake. But the courts are repeating and magnifying the mistake partly out of ignorance and partly because the lawyers and pro se homeowners are ignorant and have presented the wrong challenge to foreclosure.

There was no free market because only a handful of securities firms had knowledge of what they were doing.

This became institutionalized and so far millions of illegal foreclosures and nearly 20 million people have been displaced from their homes by a scheme that pays off the homeowner’s promise to pay contemporaneously with the transaction but never gets recorded as such anywhere. The homeowner of course is kept strictly in the dark.

PRACTICE ALERT — DENIAL VS AFFIRMATIVE DEFENSES: there are several very talented trial lawyers who disagree with what I am about to say. In my opinion the best strategy is simply to file an answer that denies the allegations of a judicial complaint or which challenges the implied allegations contained within a notice of substitution of trustee and subsequent notice of default.

Although challenges based upon the belief that the documents are forged and fraudulent are probably true, there are at least two problems that I think are virtually in surmountable for homeowners.

The first problem is that once you make an allegation, you must prove it. And if the allegation involves forgery or fraud, you need to prove it by clear and convincing evidence which is something close to beyond reasonable doubt.

So while your opposition merely needs to show that it is more likely than not that the homeowner breached a duty to pay the claimant, traveling along the path of affirmative defenses that a ledge forgery and fraud means that the homeowner has a higher burden of proof than the claimant.

In terms of what must happen in the courtroom, the homeowner therefore will need to find people who are actually involved in the forgery or fraud who will admit the existence of a scam, and their own role in it.

This is where federal and state agencies should be accepting the burden of investigation and proof. But they really have not done so and I have no reasonable expectation for that to change.

I agree that the contrary view has merit. Filing affirmative defenses claming fraud and forgery does in fact have the effect of widening both the scope and potential opportunities to hold the other side in contempt for noncompliance in discovery. And we all know that the there will be no compliance. My opinion is a bit more direct and decidedly riskier from an academic point of view. But it is a lot easier and more credible to say that the allegations against the homeowner are untrue than to say and never prove the allegations were false, forged, and fraudulent. To be fair, I know of numerous isntances where both strategies have been employed successfully.

And if you look for the beneficiaries of the trust, you will only find one or more investment banks. You will never find any investor who purchased any certificate issued in the name of the alleged trust.

The reason I say that the trust doesn’t exist even if it is registered is that the only thing that has ever been put into the trust has been the Bare naked title. No trust exists without some legally recognized thing (res, in Latin) that has been legally transferred to the trustee of the trust to hold in trust for the benefit of the beneficiaries.

Some lawyers and virtually all homeowners are bewildered by this labyrinth of technical legal jargon and now are encouraged to make up their own definitions because of some false narrative on the internet — a feature that the investment banks regularly exploit.

PRACTICE note: the mistake that lawyers and pro se homeowners are lured into making is that they think that the pooling and servicing agreement is the trust agreement. It isn’t even if it says it is. 

Practitioners should refer to state statutes regarding the statutory requirements for an affective trust agreement.

Generally speaking, they require an identified trustor or settlor, an identified beneficiary or beneficiaries, identified property that has been legally transferred into the trust, and the terms of how the trustee is instructed to manage the property that has been transferred into the trust.

If you look at any pooling and servicing agreement you will find that they are missing one or more of those elements. Look particularly for references to exhibits that do not exist.

Click Here to Purchase Access to 9/29/21 CLE Webinar for lawyers “Examination and Challenge of Assignments of Mortgage.” 

CLICK TO DONATE

Click

FREE REVIEW: Don’t wait, Act NOW!

• 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.

Filed under: foreclosure |