It’s A Lie, Pure and Simple: Bank of New York Mellon, as trustee

CONFIRM SAULE OMAROVA AS HEAD OF OCC!!

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“Bank of New York Mellon as trustee for the certificate holders” is an exercise in deceit and fraud.

Lawyers for homeowners should pay more attention to filing a motion to dismiss or a motion for more definite statement as to the identification of the claimant. 

It is simply human to try to skip to the main issue. But it is not wise if what you are skipping is in fact the main issue.

I am currently reviewing a case in which the name that is offered as the designated claimant is “Bank of New York Mellon as trustee for the certificate holders of CWABS, Inc. Asset-Backed Securities 2011-7.” This is gibberish, nonsense, a lie intended to mislead anyone who reads it, and completely unsupportable as well as contrary to the position of Bank of New York Mellon in every instance except foreclosure.

Everything that is stated in that name is a lie. Everything that is not stated in that name but nevertheless implied is also a lie.

The lawyer who put that name on the paper or pleading will argue even further implying that that name is the name of a legal entity that owns or has some rights to administer, collect and enforce scheduled payments allegedly due from a homeowner on account of the loan account receivable established when the homeowner allegedly received money and which was later acquired through purchase by that name. It is all a lie.

Lawyers are NOT allowed to assert bald-faced lies in court; but, they are protected by a doctrine called litigation immunity from uttering such bald-faced lies as long as they didn’t know for a fact that it was a lie. That is because in the oath of every attorney he or she swears to make the most of the client’s position even if it is bad.

So let’s look at all the things that are wrong with that name and how it leads to a wrongful result: an illegal foreclosure.

  • Bank of New York Mellon is not making any appearance despite its name appearing in the title of the document or case. It is named as being a trustee which means by definition that it is not appearing on its own behalf but rather appearing on behalf of a trust.
  • There is no trust named or identified in this case. Sometimes in other cases, you will see the word “trust” used but there is no legal entity acting as a trust. I trust has I trust agreement in which the trustor, beneficiaries, terms of administration, and something is identified as having been entrusted to the trustee. But in this case, they don’t even try to identify any trust. Therefore the appearance of Bank of New York, as trustee, is a fictional appearance. It is neither appearing on its own behalf nor appearing on behalf of the trust. Regardless of whether it is a pleading or some document, the entire instrument is a legal nullity because it is lacking a legal person.
  • The use of the term “certificate holders” is also a lie. Neither the certificates nor the holders are identified. And since there is no reference to a trust, the implication that the certificate holders are somehow beneficiaries of a trust for which bank of New York Mellon is the trustee, is a flat-out lie. But here’s the kicker: anyone who has read the indenture on the certificates knows that the certificates expressly disclaim any claim or ownership interest or right to collect any payment or debt due from any homeowner. Therefore the holder of such a certificate possesses no interest in law or a fact making their existence relevant to any action in foreclosure. In the current custom and practice of securitization, the certificates that are purchased by investors are mere promises to pay, without a maturity date, a scheduled regular payment. The promise is not based upon the terms of any note or any mortgage ever executed by the homeowner and is not dependent upon the receipt of payments by anyone from the homeowner.
  • The really crazy thing is that there have been tens of thousands of foreclosures completed in which the claimant or plaintiff was named as being only a pile of certificates. In a legal process that has never been accepted by law, custom or practice as the identification of a legal person and therefore is another legal nullity.
  • And that brings us to the issue of how could Bank of New York Mellon be the trustee for certificate holders who are not part of a trust? The obvious answer is that is impossible. Further, any statement or implication to the contrary is a lie.
  • As for CWABS, Inc., that is a sham conduit referring to Countrywide Home Loans as an aggregator, not a lender, through which data passed but nothing else. No ownership of any asset was ever invested or transacted with CWABS, Inc.. And CWABS, Inc. is not actually mentioned as a party is it? So why is it there? It is there to confuse the reader. And it is a lie to mention it as a party that ever had an interest in either of the paper trail or the money trail.
  • The use of the phrase “asset-backed” is also a lie. The certificates are not backed by any assets. It says so right on the indenture to the certificates. And any effort by investors who purchase the certificates to obtain some leverage over the investment bank that lied to them when they sold the certificate has resulted in failure. Despite dozens, perhaps hundreds of cases in which investors have sued the investment bank and the named trustee, there is not a single instance in which the investors prevailed on the basis that they had some equitable interest in transactions that have been conducted with homeowners. Both the investment bank and the named trustee prevailed in such litigation simply because of the findings of fact by the judge that the certificate holders possessed no ownership interest or other equitable or legal rights in any transaction with homeowners. But several settlements did occur in which the investors accused the investment bank of fraud and negligence.

So if all of this is a lie, then why would anybody risk a brand-name, prison, and potential liability for compensatory and punitive damages? The answer is money. The current securitization practice is the Holy Grail for all investment bankers. Instead of being a broker for the sale of securities from a corporate client or governmental unit, the securities brokerage firm gets to sell the securities and keep the proceeds. Imagine an IPO in which the company that was promoted received no proceeds from the sale of their stock. That is what is going on here.

And why did they think it was necessary to use such carefully worded phraseology? Here are some of the reasons:

  • Bank of New York Mellon is used simply to create the illusion that the process is being administered and pursued on behalf of a financial institution. This is patently false. Bank of New York Mellon is in fact a financial institution but it is not appearing as a financial institution. It is appearing as a false trustee of a nonexistent trust. Even if the trust existed it would be the trust that is administering and pursuing claims and the trust is not a financial institution. But lawyers like going to court and saying things like “Your Honor this is a standard foreclosure on behalf of Bank of New York Mellon.” They like that better than saying that they represent the mysterious trust that is seeking foreclosure.
  • Stating that Bank of New York Mellon is appearing as trustee implies the existence of a legal entity that qualifies as a trust under the laws of some jurisdiction. Even in cases where the trust is named, there is never any allegation that states that the trust was organized and existing under the laws of some US jurisdiction. And in the rare cases where they do identify the state, it is usually Delaware, which allows the use of the word “trust” for an LLC, which is not a trust.
  • And the rest of the phraseology used in the “name” of the claimant or plaintiff or beneficiary is merely used to make the whole thing sound more “institutional.”

So the bottom line is that they do all of this in order to establish initially in the mind of a judge that this is a case of “bank versus deadbeat homeowner.” Once they have established that in the mind of the judge, the judge simply fills in the rest in his or her mind based upon training in law school and experience in court. The only truly viable defense that normally applies to collection efforts on debt is payment by the debtor to the creditor. And when the bank is involved it’s presumed that their claim is valid and their records are accurate.

In truth none of that is correct in virtually any of the foreclosures that have occurred over the last 25 years. The result has been a shift of wealth from approximately 15 or 18 million households to a handful of greedy people on Wall Street.

The above explanation is true, accurate, correct and confirmable by anyone. But it takes considerable effort, time and expense to arrive at those conclusions given the normal human reaction to except anything that is in writing. What has occurred, is that this transfer in wealth has occurred mostly without any taxation at all, leaving local, state and federal governments without the revenue that was vitally needed to survive the destruction caused by these “weapons of mass financial destruction.”

The entire securitization scheme survived because of a hugely successful Bluff by Wall Street insiders. They essentially threatened four presidential administrations with financial Armageddon if they were not allowed to survive. Nobody fact-checked their threat. That was a lie too.

Anyone who wants this country’s financial policies to make sense needs to avoid voting for anyone who is taking money from Wall Street and donate money and vote for anyone who is running against the mega-banks. We have a vote coming up for confirmation of Saule Omarova as head of the OCC. She wants to dig in, regulate these banks and start regulating financial technology companies so that when you get a letter, it really is from the company whose letterhead is being used and it is signed by someone who is responsible for signing it. WRITE your Senator and Congressman and hold them to account if they fail to confirm her. 

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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
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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, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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3 Responses

  1. Invest in post stamps and send letters with Neil’s posts to your State Supreme Courts and Senators as Notices under 18 USC 4 Misprision of Felony. They MUST read and record them. It would cost you about $20-30 per months but you will know for sure that they KNOW about the issue and cover for it.

    As such Judges and Senators are accomplices in the biggest crime in the World history

  2. Tonycat – my deep sympathy to you on the loss of your husband. So many have suffered by fraud right from the onset of claimed (false) origination.
    This is all totally accurate by Neil. I have been urging for a long time to question representation. To add to Neil’s excellent commentary, “trustees” are not a corporate registered entity, and the claimed “trust” cannot stand alone without the trustee – who is simply a division of the BANK. But the BANK is never there. I have seen judges say – “well if they say they are here – they are here.” NO – they are NOT here. It is imperative that representation be questioned immediately. And, if there was a foreclosure based on false representation, in my layman opinion, this is fraud upon the court. I am so baffled as to why our U.S. Government allows this to occur in courts across the country. I think our economy is in such jeopardy – they simply don’t care. And, judges may be biased, ignorant of issues (I have seen judges say they know nothing about mortgages but continue to rule anyway), or simply so controlled by big law firms (meaning the little guy could not possibly be correct). Why won’t attorneys defend homeowners? MONEY. They want money. BIG MONEY. And, they won’t get it with the precedent law as is. The big law firms know they can get paid by the false plaintiffs. And, if they cut off their source of income, or judge’s love of them – they are finished. No one wants to defend the little guy – who is correct. So while Neil gives us hope and direction, the government has let us all down – beginning with bogus settlements that covered-up. And, the politicians appear clueless. They don’t even address the issues. Are they clueless or compliant? Or both? You know, you watch hearings, and every single representative has their own agenda. Not one has an agenda for massive mortgage fraud. And, we vote for them anyway. BAD. .

  3. Are all our lawyers in our towns so stupid they don’t get this from reading our documents the foreclosers filed in court? And if they DO get it, why won’t they defend the homeowner? They HAVE to know it is theft of our greatest asset, and total disruption of our lives and finances. And sometimes one or more of the homeowners’ health and very life due to the stress of the attack on us, plus being unable to find any help to defend us. My husband and I lost our house to this scam. He died 5 months later from a heart attack. I have heard comments by local lawyers to the effect that the Judge will have it in for them if they defend the homeowners. HOW can the lawyers ethically NOT defend the homeowners? Same for the Bar. I guess in spite of my college degrees I am stupid, I just don’t get it.

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