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So the Defense in your case is that

• there is no claim, and thus no default
• the named designated claimant is a nominee and has no claim, and
• the designated company claiming to be a servicer is not servicing (i.e.,  it does not receive, account for or disburse payments from homeowners) and has no authority to declare a default much less prove that a default occurred — i.e., that the designated claimant suffered some actual economic injury arising from nonpayment that can be corroborated by admissible evidence.

And just to put a finer point on it, I strongly recommend that any lawsuit should be brought against the named Bank and not “as trustee” for anything. This is because the basic premise of your defense is that there is no trust that owns any underlying obligation owed by you to the trust.

Your secondary defense is that there is no underlying obligation owed to the Bank.

And your third line of defense is that any agency authority claimed by a company that has been designated as a “servicer” is irrelevant and immaterial and therefore not admissible into evidence unless the principal (US Bank) owns an underlying unpaid obligation due from the homeowner to U.S. Bank. See 9-203 UCC.

You do NOT advance some theory of securitization except as context. Do not attempt to prove how the current iteration of securitization operates. You will fail. But if you attack the simple most basic elements of the claim against you at the earliest possible time you will usually win the case — simply because there is no claim and no viable claimant.

Filed under: foreclosure |