there is no witness from the named claimant — ever. This slips by because homeowners or their lawyers fail to object and undermine such proffer through earlier discovery and motion practice. It also slips by because homeowners agree or even make claims or assert defenses that use the lies promulgated by the attorney for the false claimant.
He called it the “investor trust.” — This is why you need experienced trial counsel — and maybe experienced appellate counsel. You could refer to it as the alleged investor trust.” But I think that the more appropriate tactic and strategy is to give it your own label, like “securitization vehicle” or even “Special Purpose of Vehicle” that would make it hard for the opposition to discount. That needs to be done in the context of the defense narrative that the SPV is a vehicle for Wall Street firms with right, title or internet in any debt, note or mortgage issued or owed by any homeowner.
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The label “investor trust” might be accurate or inaccurate or even fraudulent.
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Whether a trust even exists — with or without a “res” (thing) that is held in trust by the trustee — is a separate matter. If the trustee produces a witness that is an authorized officer or employee of the alleged trust, the testimony from such a witness could be used as the foundation for establishing that the alleged trust does exist. That witness is also required to testify in support of and as the foundation for establishing the existence of a trust account. And that witness is also required to establish the foundation for the existence of an unpaid loan account receivable due to the trustee, as trustee, as an obligation of the homeowners.
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That witness is NEVER present in any foreclosure proceeding. Instead, the “witness” is a know-nothing independent contractor who has no personal knowledge of anything but is allowed to say that he or she is “familiar” with the records and practices of the named “Servicer” but never asserts such familiarity with the records and practices of the trustee, the trust or anyone else.
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And while I would agree it is a fatal error on the part of the homeowner to fail to challenge the absence of a competent witness from the start, I do think that trial and appellate courts could easily have spied this unacceptable anachronism and ruled sua sponte that the testimony from such a witness is inadmissible and the records proffered are pure hearsay — particularly in view of the recent ruling by the CFPB that the only records of business conducted in connection with the receipt and disbursement of money related to the claim is performed and maintained by FINTECH companies that are not designated as the real servicers.
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To put an absurd point on it, if the “witness” was Donald Duck or Mickey Mouse appearing via Zoom, would the absence of an objection from the homeowner create jurisdiction and license of the court to take the “testimony” as true or even admissible evidence?
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Here again, as always I point out that the promise to pay issued by the homeowner (a) does not necessarily create an obligation in law or equity if there was no business or personal reason for issuing the promise and no consideration for making the promise. In this case, the promise was issued under false pretenses — i.e., for the creation of a loan account with a lender and compliance with lending laws, RESPA, and the FDCPA. If no such account was created or maintained then the obvious question is “if it was not a loan transaction, what was it?”
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Since no unpaid loan account receivable survived the transaction cycle there are only two possibilities left, to wit: gift or payment for services. It could also be argued that any payment (if there was an actual payment) was in exchange for obtaining an arguable interest in a mortgage or note even if they were procured by false pretense. Either way, it is not a loan. And either way, the homeowner did not agree to THAT transaction.
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Don’t laugh. The gift theory has indeed been floated in many courtrooms once homeowners got too close to the black hole (i.e., the claim). Having destroyed the theory that there was in fact a transaction in which the debt was purchased and sold, homeowners are faced with arguments that the note and mortgage are still enforceable “if the conveyance of the note or mortgage was a gift.”
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And that brings us to the question of “if no loan is in the alleged trust (assuming the named trust legally exists under the laws of some jurisdiction — a fact that can ONLY be determined by seeing the actual “Trust Agreement” (not the PSA) then what is in the alleged trust?” The answer in logic and law is that the trust would then be the owner of bare naked legal title to the note and the mortgage with no right to enforce either one on its own behalf either through the trustee or anyone else.
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The trapdoor to avoid is to accept or admit that a company that is claimed to be a servicer (without ever saying so themselves) has received a grant or authority to administer, collect or enforce a debt, note or mortgage from a homeowner. Of course, I have already covered how the “servicer” performs no servicing duties relating to either receipt or disbursement of funds relative to any alleged obligation of the homeowner.
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But in addition to that, the “back to basics” strategy is to challenge the grant of such powers by an entity who neither owns the right to administer, collect or enforce (that is even stated in the PSA without even looking at the Trust Agreement). Despite thousands of volumes of case law asserting established law to the contrary, courts readily accept that right to administer, collect and enforce are literally created by the conveyance document even if no such powers exist in the grantor. Without directly confronting the judge on this subject it is likely that the judge will proceed and the failure to confront might waive the point on appeal.
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And THAT brings us back to the term “investor trust.” That term is a lie if the assertion or implied argument is that the named “trust” is composed of investors who purchased certificates from an investment bank that were issued under the name of the alleged trust. Such investors are NOT beneficiaries of that trust — and there is nothing in writing anywhere, nor anyone willing to perjure themselves to say that they’re “owners” or investors in the trust, thus making it an “investor trust.”
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No investor who bought any certificates ever acquired any right, title, or interest to any asset of the trust, whether it exists or not. No investor who bought any certificates ever acquired any right, title or interest to any debt, note, or mortgage of any homeowner. The investors are irrelevant and so are the certificates. The reference to the certificates serves only one purpose — to mislead the homeowner and the court. And the court usually buys it hook line and sinker mainly because the homeowner does not challenge that assertion.
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But the reference to the “investor trust” might still be true. How? Because the trust agreement, if you ever could see it designates securities brokerage firms as beneficiaries who have some arguable (even if intangible) interest in the receipt of notice (without any receipt of original documents) of a notice of note endorsement or notice that an assignment of mortgage has been signed and recorded in the chain of title of some property.
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Even if the grantor or signator had absolutely no right, title or interest to any proceeds of administration, collection or enforcement of any debt, note or mortgage (all disclaimed in the trust agreement), the mere existence of such false and fraudulent conveyance
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So the strategy should be to identify that deficiency by the unwillingness and inability to answer questions about it. First, there is no witness from the named claimant — ever. This slips by because homeowners or their lawyers fail to object and undermine such proffer through earlier discovery and motion practice. It also slips by because homeowners agree or even make claims or assert defenses that use the lies promulgated by the attorney for the false claimant. They refer to “the loan”,”the servicer,” “the trust”, the trustee,” and “the investors”. They then point out deficiencies in the documents. This means they admit to the debt and the default and the right to administer, collect and enforce and then expect the court to deny enforcement because of some technicality. That is not reality. It won’t happen and it should not happen.
Filed under: foreclosure |
Has anyone researched the use of “recalled checks” ?
Recalled before the 90 days are up just might equal Pandora’s Box for the whole mess.
The other problem with the so-called “investor trust” is that those mysterious investors can never be identified – even if there are bona-fide investors, which as Mr. Garfield points out, there are none. But, assuming the argument, remember that “certificates” are routinely bought and sold, so the identity of the “investors” would constantly shift, even daily. Under those circumstances, no party with real aggrievement can be identified to come before the Court for redress of grievances. And that leaves the plaintiff attorney claiming an “investor trust” with ghosts for clients – people whom he does not know, and nobody can identify.