Livinglies's Weblog

Someone once asked me if “securitization” was actually a hologram. My answer was that it is a hologram of an empty paper bag. He ran with that and made millions defending homeowners. All he did was demand corroboration of the facts that the lawyer for the foreclosure mill wanted the court to presume from the apparent facial validity of the documents.

The apparent facial validity is the picture. It isn’t true, but it looks good — like a nice picture of a duck taken with a high-end camera.

So let’s take an example, which I lifted from a recent upload from Scott Staffne. As usual, it is an appeal that challenges the notion that someone who does not own the underlying obligation would be allowed to ask for property to be forcibly sold and the occupants dispossessed.

The answer, of course, as any law professor will tell you is that there are specific provisions in the law to prevent that from happening. But the courts are doing it anyway, and the appellate courts keep dodging the issue as though something terrible would happen if they allowed the premise of the modern foreclosure to be challenged, as is required to be allowed under the U.S. Constitution.

So, as an example, let us look at the picture of the “trustee.” Keep in mind that a trustee is someone whom somebody trusts. That should seem self-evident but in the world of foreclosures, it is not evident nor even true.

In order to accept the following picture, one would need to accept — contrary to ALL applicable law — that the creation of a trust may be accomplished without entrusting the named trustee with anything and that the legal position of “trustee” need not require any active interest or management of anything.

One would also need to allow for the fact that the trustee could be substituted by someone other than the trustor (the one who created the trust) or even sold contrary to the provisions of any alleged instrument that supposedly created the “trust” as opposed to the operation of one of the provisions in the trust agreement (without which there is no trust).

In fact, as I have previously reported on these pages, you would need to accept that the position of “trustee” can be bought and sold like any other commodity, with or without the permission of the trustor or any beneficiary — and in fact without notice to any of them.

For example, the entire shift from Bank of America to U.S. Bank was done exactly like that despite the explicit provisions of a buried trust agreement that designated LaSalle Bank as trustee or any successor by merger with LaSalle Bank. The shift to BOA was thus valid. The shift to US Bank was not.

And since there was a total absence of any trustor or beneficiaries, there was nobody to complain. And since the courts have cleverly invoked a bar to standing, homeowners could not complain that the new Trustee was a trustee or that any trust existed.

The fact that money from forced sales is never paid to such a picture of trustees is irrelevant, we’re told, because the homeowner owed the money. That of course is a conclusion that is NOT based on any alleged facts asserted or proffered into evidence.

So lets look at this one:

U.S. Bank National Association, as successor in in-terest to Wilmington Trust Company, as trustee, successor in interest to Bank of America, National Association, as Trustee for Structured Asset TrustMortgage Pass-Through Certificates Series 2005-1.

Here are my  observations that you can “take to the bank.”

1. There are no certificates that bear the name “Structured Asset TrustMortgage Pass-Through Certificates Series 2005-1.” That name does not exist. Yet it appears in virtually all pleadings and orders in many cases. It is complete fiction. The actual name is “Structured Asset Securities Corporation Trust Mortgage Pass-Through Certificates Series 2005-1.”
   1. Structured Asset Securities Corporation is also known as SASCO. It is a thinly capitalized intermediary that acts solely for purpose of creating the pixels on the picture known as “Securitization.”
2. “Successor” means a new company has taken over an old company by acquisition or merger. It does not mean the same thing as “assignor” or “assignee.” That is why we have different words for such things.
3. Wilmington was never entrusted with anything, nor was Bank of America or US Bank. It’s not a duck. It is a fuzzy picture of a duck. As such, by definition, they were not trustees even though they were described as trustees.
4. Since nothing was entrusted to any trustee, there was no active legally existing trust, even though it was named in some documents. Some lawyers get confused by the existence of an endorsement or assignment naming one of these entities.
   1. But if you ask the assignee whether they accepted such an assignment or endorsement or if they have any claim to collect money on behalf of themselves or any trust beneficiaries, their answer is always the same. “Go screw yourself. Go talk to the servicer.” That is a peculiar answer from someone who is alleged to be pursuing payment on an unpaid account they own.
5. Lehman was the “Seller” even though it sold nothing other than certificates. Lehman did not sell interests in any debt, loan, note or mortgage. And the certificates do not say that any such sale occurred —even though most uninformed people assume they MUST say that.
6. Lehman went bankrupt, as did Aurora Loan Services. Neither of them listed any ownership of any debt, note or mortgage. (See Where’s Waldo? in my articles earlier this week).
   1. So at the conclusion of the securitization cycle, there is no owner of any debt, note, or mortgage, but plenty of people want to enforce it anyway.
   2. Homeowners who are willing to test this out typically win cases against those making claims to administer, collect or enforce.
   3. Homeowners who are not willing to test this out because they think it is ridiculous or even immoral typically lose everything — their down payment, their improvements and landscaping to the property, most of the furnishings selected for the property, and their lifestyle, marriage, and perhaps even their lives as a result of stress producing medical illnesses or mental illnesses.
   4. Most lawyers accept the picture because they have no interest in testing out whether it is fake or presents something that actually exists.

And all that is just for starters.

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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).

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

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