contrary to popular belief, if the foreclosure is allowed, no trust, no beneficiary, no certificate holder, and no trustee or servicer is ever going to see the money proceeds from the liquidation of the property.
I received a chat question from a reader with whom I frequently converse.
I'm being foreclosed by US Bank the "trustee" of a
"trust" who describes itself in a public docs as:
"The trustee holds a security interest in the
mortgaged property by having the mortgaged loans
assigned in the name of the trustee for the benefit
of the trust (e.g.US Bank as trustee for the
MBS trust or in the name of MERS, a mortgage
electronic recording system used by many of the
largest financial institutions. The duties of
the trustee are administrative in nature, are
clearly spelled out in the MBS transaction documents,
and are discretionary in nature."
I'm not an attorney but I view this statement as
totally self serving, and does not justify their
making a fee in return for taking property and
causing the rightful owner serious hardship and
deep emotional distress.
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In a word, “Bob” is right. Such statements are sent out to confuse readers, including homeowners, lawyers, judges, law enforcement, and regulatory authorities. It is all false, but if you read it carefully, nothing they say is actually a lie because they do not say they own the obligation allegedly owed by the homeowner.
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They are not saying, “look, Mr. Deadbeat, we paid for this, and if you don’t pay the obligation that we bought, we will suffer some economic injury that is exactly equal to your failure to pay plus the costs of getting a judgment or a forced sale of your property.”
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They don’t say that because if they did say it, it would be a fraud. The position of all actors who participate in claims to administer, collect and enforce alleged mortgage debt is that the paper is all they need. The law says otherwise. The paper needs to be truthful.
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If they COULD say that, they certainly WOULD. And they know how to say that, and they even had a hand in drafting the laws that required such statements. That is exactly what was alleged in all foreclosures involving a secondary or successor lender right up until the securitization era that started in earnest when MERS was launched in 1996.
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Every statement in the quotation he reported to me is false. Under our laws – and the laws that have existed for centuries – nobody can claim a security interest in the property unless they are the debt owner — i.e., they have paid value for it (without which there could be no actual or even implied financial injury). The assignment of a security interest is a legal nullity without purchasing and selling the underlying obligation. This is set forth in UCC 9-203, adopted by all US jurisdictions.
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The statement that this is for the benefit of a trust is an attempt at obfuscation. But having said that, they want the reader to assume that a trust exists, but they will never tell you the jurisdiction under whose laws the trust was created nor the jurisdiction in which the trust is doing business.
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While they say that they are acting on behalf of the trust, they are not saying that the trust has any interest in any property, money, payment, debt, obligation, note or mortgage. And that is because there is no trust, and even if there was, the alleged trust has never received a conveyance of an ownership interest in the underlying obligation.
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And what that means, contrary to popular belief, is that if the foreclosure is allowed, no trust, no beneficiary, no certificate holder, and no trustee or servicer is ever going to see the money proceeds from the liquidation of the property.
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The circular logic offered to contradict that is that the assignment recites consideration (most of the time). As securitization is now practiced, the assignment creates a fictional transaction in which no money has ever changed hands, and no owner of any debt or obligation allegedly due from a homeowner has ever sold such an interest.
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There is a very simple mechanism to test the accuracy of this strategy or tactic. If the assignment does not recite interest (which is sometimes the case), it can be attacked as being facially invalid.
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If the assignment does contain a recital like “$10 and other valuable consideration,” then the homeowner has every right to receive a direct answer to a direct question: “show me the $10 payment and describe the other valuable consideration.” This is most easily accomplished in litigation during the discovery process. The response is always the same: “here are the reasons we don’t have to answer your questions.” But there is no legal reason to refuse to answer those questions.
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But there is a very good logical reason why the lawyer for the foreclosure mill will be unable to answer those questions and produce the required documents.
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The reason is that there was no transaction, $10 was not paid, and there was no other valuable consideration, nor was there a seller or purchaser. The transaction recited on the face of the assignment is entirely fictional. The law is extremely clear in all jurisdictions that fictional transactions are not “justiciable.” That means the court has no jurisdiction to hear disputes based on such nonsense.
Lastly, the statement that the trustee engages in discretionary administrative activities is an admission that the trustee is not tasked with doing anything.
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A trustee, by legal and logical definition, is one who manages the affairs of an asset entrusted to the trustee for the benefit of beneficiaries.
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The statement that is quoted refers to the benefit of the trust which is a circular statement again. The fact that the activities of the alleged trustee are discretionary is an admission that the trustee is not required to do anything. Legally and logically anyone who is not required to do anything on behalf of any beneficiaries that are identified by name or classification cannot be legally described as a trustee.
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So in the end, you have no trust, no trustee, no trust activities, nothing entrusted to anyone who could be a trustee, and no requirement that anyone perform any action. The statement that implies such ownership lacks any foundation and if properly challenged, can be defeated in most cases.
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The only exception would be judges who have predecided the outcome of the case. But my experience is that while many judges go into the courtroom with “the end in mind,” they can be persuaded otherwise as the case proceeds and the opposition is unable or unwilling to comply with the most simple requirements of timely and proper discovery demands.
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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 14 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).
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Also how are they allowed to steal houses at Sheriff Sales with $100 CREDIT BID ??????
The System is a Lie!!!!