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Who or what is the real party in interest on Plaintiff’s side of the “v.” and what citizenship does that party hold. Despite its best efforts, the Court has not had those simple questions answered, questions that must be answered before any further proceedings or decisions are proper.”)

citizenship of unincorporated associations must be traced through however many layers of partners or members there may be’ to determine the citizenship of the LLC.”). ”)

I am receiving heaping amounts of praise for my work on this blog. But it seems that very few people- lawyers or homeowners- are using the work I have produced.

A case in point is that since 2006 I noticed one glaring deficiency in both the pleadings and recorded documents — the failure to provide a sufficient description of the identity and citizenship of the alleged “trust” that as “REMIC Trust” was supposedly maintaining a trust account in which the there was an unpaid loan account due from the homeowner.

Hat tip to William “Bill” Paatalo for providing yet another case decision that underscores my point. First, if you fail to raise the issue at the proper time, you might just have waived the issue and created jurisdiction to hear a case involving a nonexistence claim. Borrowers make a claim real — not the lawyers for the foreclosure mill. They make it real in the legal sense — i.e., where the court is bound and obligated to treat it as real.

And this is also where I repeated the admonition that homeowners should take all steps necessary to convince ignorant local lawyers to take their cases.

All homeowners have access to the courts. The fact that they do not know how to use that access is not a problem for the courts.  And the fact that the federal agencies charged with protecting consumers are not doing their jobs is not a problem for the courts unless someone sues the agencies.

And although I have cited many appellate cases in all sorts of courts — tax, property, contracts, bankruptcy, people keep asking me for caselaw as though I have not cited it. So here (with emphasis added) is another one, this time in New Jersey:

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *1 (D.N.J. Sep. 22, 2020) (“This matter comes before the Court on motion of Plaintiff, self-identified as “Dakota Asset Services LLC, as attorney-in-fact for U.S. Bank National Association, not in its individual capacity, but solely as trustee for the RMAC Trust, Series 2016-CTT” (“Plaintiff”)”)

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *2 (D.N.J. Sep. 22, 2020) (“This case is remarkable less for its underlying substantive dispute and more for its procedural nuances. At the heart of the Court’s current inquiry into the predicate issue of its jurisdiction are these two seemingly simple questions: Who or what is the real party in interest on Plaintiff’s side of the “v.” and what citizenship does that party hold. Despite its best efforts, the Court has not had those simple questions answered, questions that must be answered before any further proceedings or decisions are proper.”)

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *4-5 (D.N.J. Sep. 22, 2020) (“mindful of Plaintiff’s pro se status and Third Circuit case law that provides some leeway to a removing party acting in good faith who may be unable to fully identity the citizenship of an opposing party especially where, as here, the party purports to be a limited liability company, the Court Ordered the parties to submit a joint certification as to their citizenship so the Court could assess whether diversity amongst the parties existed. (ECF No. 7 at 3).”)

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *5 (D.N.J. Sep. 22, 2020) (“This attempt to “cut to the chase” proved equally unproductive. On September 9, 2019, Plaintiff submitted a unilateral statement purporting to satisfy this Court’s joint certification requirement. (ECF No. 8). Plaintiff’s statement of citizenship, however, remained incomplete. (ECF No. 8) (improperly setting forth Dakota Asset Services LLC’s citizenship by failing to identify the citizenship of Dakota’s members, and failing to explain the citizenship of U.S. National Bank and the RMAC Trust, Series 2016-CTT). On September 10, 2019, Defendant filed a similarly deficient response, failing to properly set forth the citizenship of any party. (ECF No. 9).”)

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *10-11 (D.N.J. Sep. 22, 2020) (“Plaintiff has not yet identified who the proper party in interest is and has not satisfactorily alleged the citizenship of the parties identified in the caption. There are three separate entities identified by Plaintiff on its side of the caption: (1) Dakota Asset Services LLC, as attorney-in-fact for (2) U.S. Bank National Association, not in its individual capacity, but solely as trustee for (3) the RMAC Trust, Series 2016-CTT. Each type of entity identified, limited liability companies, national banking associations, and trustees prove their citizenship differently, and the Court addresses each in turn. The citizenship of a limited liability company like Dakota Asset Services, LLC (“Dakota Asset”) is determined by the citizenship of each of its members. Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010). If any member of an LLC is another LLC, a corporation, or a limited partnership, then each member of the LLC, or each partner in the limited partnership, must be identified and its citizenship pled, and for any such member or partner that is a corporation, the state of incorporation and its principal place of business must similarly be identified and pled. See Zambelli, 592 F.3d at 420 (quoting Hart v. Terminex Int’l, 336 F.3d 541, 543 (7th Cir. 2003)) (“[W]here an LLC has, as one of its members, another LLC, ‘the citizenship of unincorporated associations must be traced through however many layers of partners or members there may be’ to determine the citizenship of the LLC.”). ”)

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *11-12 (D.N.J. Sep. 22, 2020) (“As for Dakota Asset, Plaintiff identifies that it is a Delaware Limited Liability Company wholly owned by Rushmore Loan Management Services, LLC (“Rushmore”). (ECF No. 13 at ¶2); (ECF No. 19-3 at 7). Rushmore is identified as a Delaware Limited Liability Company, fully owned by Roosevelt Management Company (“Roosevelt”). (ECF No. 13 at ¶3). Roosevelt too is a Delaware Limited Liability Company. (ECF No. 13 at ¶4). Plaintiff does not explain, however, Roosevelt’s membership. As such, Plaintiff fails to fully identify Dakota Asset’s citizenship. See Zambelli, 592 F.3d at 420.”)

Dakota Asset Servs. v. Nixon, Civil No. 19-16126 (NLH/JS), at *12 (D.N.J. Sep. 22, 2020) (“As for RMAC Trust, Series 2016-CTT, Plaintiff offers no explanation of the trust’s citizenship to the extent it is relevant to the Court’s inquiry. To ascertain the citizenship of a trust, Plaintiff must examine whether the trust is of the traditional kind, often used for donative purposes, or a business entity identified as a trust, the distinction being of critical import to this Court’s subject matter jurisdiction analysis. See GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29, 39 (3d Cir. 2018) (“[T]he citizenship of a traditional trust is only that of its trustee, while that of a business entity called a trust is that of its constituent owners.”). Plaintiff previously represented during oral argument that the trust at issue may be the latter, a business entity identified as a trust, but has not identified the owners of that trust. As such, the citizenship of RMAC Trust, Series 2016-CTT has not been sufficiently set forth.”)

PRACTICE NOTE: Wall Street securities brokerage firms (“Investment Banks”) know all about this, and so do their lawyers who hire regional law firms to hire foreclosure mills who hire lawyers to appear in court without a single clue about what they are really doing.

And so you will often see now that the named creditor is a well-known brand name bank like Chase. This, it turns out, is just another layer. Virtually all installment payment contracts are claimed to have been securitized despite the absence of any loan account or sale of it.

So when you see this happening, know that the corporation might be real and a commercial bank, but it is still serving only a nominal role as a front for a securitization scheme that they would rather not discuss.

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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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Filed under: foreclosure | Tagged: but solely as trustee, Dakota Asset Servs. v. Nixon, LLC, not in its individual capacity, RMAC Trust, Rushmore Loan Management Services, Series 2016-CTT, U.S. Bank National Association |