The investment bank was the casting director and you were the audience.

Posted on May 23, 2022 by Neil Garfield

It is by exposing the virtual nature of the transactions that allows homeowners to win in high numbers. It is by suppressing the truth about the transactions that the Wall Street investment banks and securities brokers make all their money.

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In one of my consulting jobs, I am assisting the homeowner — along with local counsel — in understanding the realities of what is called “Securitization.” First, you need to remember that “securitization ” is only a word with very little meaning. In the context of Wall Street, it is supposed to mean that assets are split up or collected and sold in pro-rata pieces to investors.

Wall Street convinced both homeowners and investors that the substance of securitization meant the creation of a loan transaction and then the sale of that loan transaction and the financial expectancy of payment to multiple investors. But the securities brokerage firms never intended any of that.

They had to be convincing or else the plan wouldn’t work. The real plan called for selling the “Loan” over and over again by giving attributes of the transaction different names. So in the end, if they paid $200,000 to or for a homeowner, they would sell it for at least $2.5 million.

What they could never say, under their plan, was that they were selling a virtual loan with no value in lieu of a real loan consisting of a lender or successor paying for an unpaid loan account. It is by exposing the virtual nature of the transactions that allows homeowners to win in high numbers. It is by suppressing the truth about the transactions that the Wall Street investment banks and securities brokers make all their money.

So the question in this project was who is the Plaintiff? That should seem obvious but it isn’t. Interestingly, the suit that was filed against the homeowner does not yet sue for enforcement. That is a head fake, as we shall see. If the homeowner fails to contest the case the legal standing of the plaintiff will have been established as the law of the case and the existence of the loan account will have also been established as the law of the case.

For the uninitiated, the law of the case can loosely be translated as “for purposes of this case x is the truth even if the truth is y.”

So once they sue for foreclosure, the case is virtually over if the homeowner failed to defend.

The case involves U.S. Bank as trustee of a “title trust.”

The opposing lawyers want the wiggle room to pretend the plaintiff is USB or a trust. But USB is the representative — and USB is the only party that could legally claim to act for the trust — if the trust exists. The use of the phrase “title trust” is an experiment to see if that will get you off their backs. It is also being used to deflect legal liability for sanctions and damages.

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As to syntax, there is probably nothing wrong with identifying the plaintiff as USB as trustee for the title trust. But the claimant is only the title trust. And the powers of the named trustee are limited to what is in the trust. If the res of the trust consists of bare naked title to something subject to the instructions of a third party principal, there is nothing in the trust.
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If something were to happen to the trustee, then state law would require looking to the trust agreement to see if there are any provisions for succession and then, if not, allowing for a petition to reform or restate the trust such that a new trustee could be appointed by the court.
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You can think of it in terms of a family trust. If you convey assets to your uncle George to hold in trust for your children, and you specify the manner of administration and distribution of the assets you conveyed, you have created a trust, which has its own separate identity and name. Even if you forget to name it, it will still carry your name as trustor or settlor followed by the word “trust.”
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Your uncle George can’t make a claim regarding the administration, collection or enforcement of rights relating to those assets unless he does so on behalf of the trust and the proceeds go to the trust. If he makes the claim with the intention of the proceeds going to a third party he is violating the trust agreement — unless the third parties are named beneficiaries.
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In this case, there is nothing of financial value in the presumed trust even on its face. As title trustee, it is the trustee in name only. The actual asset (financial expectancy arising from the claimed debt) is never paid to USB or the trust. That is what they’re hiding.
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They are hiding it because several people (entities) get paid revenue from proceeds of payments or sales of property but none of them have a right to receive it. And they did it that way so they could, in substance, sell the same transaction multiple times to multiple investors without ever having to credit an unpaid account receivable —- because an unpaid account receivable does not exist on the books of any person or entity.
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In a cynical way, I give this a grade of “pure genius.” The entire success depends upon the homeowners believing the myth. Once they start challenging these cases in numbers the entire scheme collapses. While the frequency of such challenges is increasing, we are a long way off from critical mass. In overwhelming numbers, homeowners believe ( and insist) their transaction is a loan. They feel guilty even questioning the foundation of claims to enforce.
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When presented with evidence that the loan account does not exist or a lack of credible evidence that the loan account exists, most homeowners know “in their hearts” that they owe the money. That is bias. And that is the bias you encounter in the courts.
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The reality is that the homeowner did receive some money in most instances (not all) or did receive some benefit from the payment of money on behalf of the homeowner. But that money was always viewed by the investment bank as an incentive payment for homeowners to get lured into a securitization scheme without the homeowner getting any compensation. It was never to create a contractual loan which would have limited the sales of the transaction to once, to avoid charges of fraud.
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There has never been a securities brokerage firm that would invest their own money in exchange for a net return on investment of 2-3%. And yet somehow starting in 1995, they convinced the public that they could turn that into enough money to boost the profits of every player to levels never seen by the players hired to act out their parts.

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The investment bank hired good actors to play the parts one would expect in a loan transaction. That is how they sold this scheme.  

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Neil F Garfield, MBA, JD, 75, 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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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure |

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2 Responses

  1. ANON, on May 23, 2022 at 9:52 pm said:

    Excellent Neil – exactly what has happened and – it will get worse – not any better. Government ignoring all.

  2. Carpenter, on May 23, 2022 at 9:10 pm said:

    You are so very right… And yes you absolutely need a lawyer, the key is to find the correct one who can and is willing to follow your guidelines and not be afraid of consequences ! I’m not sure I have one yet or convinced he is helping me in the late stages of this 13 year foreclosure! BUT i will bury them with a flashing neon sign!!! Thanks Neil for a newsletter of encouragement!

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