Getting your words and their words straight in foreclosure litigation

I am having a spirited exchange with a very experienced trial lawyer on the West Coast. We are discussing whether some declaration should be filed in a pending case where a Motion for Summary Judgment is pending. My answer is no, but a procedural objection should be raised on two grounds:

(1) that the mere contact from a lawyer representing a new party seeking to file a motion to intervene is reason enough to deny the motion for summary judgment and

(2) that the lawyer appears to be saying something but when you look closely she is not saying anything at all.

  1. We will file” is not an assertion. It is not even a promise, and I have nothing to declare about that.
  2. “Motion to intervene” merely states the title of a proposed motion that may or may not be filed. It is nota filing with the court so it means virtually nothing.
  3. It does imply (create the inference) that SPS might have some economic interest in the outcome of the litigation (why else would any lawyer file a motion to intervene). It also admits or strongly implies that SPS is not yet a party to the action, directly or indirectly. However, if the lawyer for SPS believes that a Motion to Intervene is appropriate, she is representing that SPS is her client (probably not true) and that SPS has rights to be protected against one side, the other, or both. She doesn’t say.
  4. She is also inserting something that is not exactly part of the case yet (because she has not intervened pursuant to a motion that describes the interest of her client, SPS). That  “something” is DBNTC. But she does not assert that DBNTC is a trustee. She only mentions that when naming the “whole client” — “Deutsche Bank National Trust Company, as Trustee, on behalf of the holders of the Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-3.”
    1. But here we go again. Does she represent SPS or DBNTC. Because DBNTC does not have any contact or relationship with the lawyer or her firm. And Neither DBNTC nor SPS has ever instructed the lawyer to do anything. Nor does SPS or DBNTC pay any invoices for legal fees.
    2. And here we go again: There is no mention of a trust — only a trustee.
    3. There is also no mention of beneficiaries but based upon prior conduct of lawyers purportedly naming the same parties they are NOT asserting but they ARE implying that the “Certificate holders” are beneficiaries of a trust.
    4. We are left with no reference to a trust that is managed or administered by DBNTC, and no mention of a trust account in which a specific asset (an obligation due from White) is held as an asset.
    5. And we are left with no reference to the foundation for even implying that the DBNTC is empowered to exercise representative or agent authority for certificate holders, nor the identity of the certificate holders.
    6. And, finally, we are left with no reference whatsoever to any exhibit or allegation asserting that the certificates are anything other than paper or worse, non-certificated “certificates” containing only data relating to the issuer and the buyer.
The only thing I can declare is that as an expert in investment banking and as a former teacher of auditing to CPA stduents, none of these words constitute a statement that could be subject to audit or confirmation under Generally Accepted Accounting Principles (GAAP) or SEC rules.
The principles of auditing would require that the following be produced before any confirmation process could even begin:
  1. A statement that the lawyer represents an identified client that has an economic interest in the outcome of litigation.
  2. A copy of instructions from DBNTC, SPS or other parties instructing the lawyer to take action.
  3. A description of the implied trust and a copy of the trust agreement (not the PSA).
  4. A description and identification of the holders of certificates.
  5. A description and identification of a confirmable source containing the indenture for the certificates.
  6. A document executed by the certificate holders asserting the agency authority of DBNTC.
  7. Any “documents” confirming the existence of an unpaid receivable due from White.
The only thing I can currently declare is that I have not seen any such documentation or related document.
And let me remind our readers that SPS was a wholly owned subsidiary of Credit Suisse which recently collapsed and merged into UBS.
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Neil F Garfield, MBA, JD, 76, 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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3 Responses

  1. So many cases like that without any legitimate claims

  2. once a judgment is entered in favor of a servicer LLC, how can a mortgage (that no longer exists) be transferred to a US BANK Trust for collection?

  3. The ‘whole client’ – “Deutsche Bank National Trust Company, as Trustee, on behalf of the holders of the Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-3” is NOT an entity. But judges buy it anyway. Someone advances fees – whatever those fees may be. As some here may be aware, the CFPB (again) lost 2017 action against Ocwen/PHH due to decided ‘res judicata’ by the 2014 settlement. Judge claims that the 2017 counts are identical to those alleged in 2014 settlement. Therefore, summary judgment to Ocwen as no new action can be filed as all was already claimed SETTLED. This is regardless of the fact that the monitor evaluated compliance by 2014 settlement by records asserted by CFPB as erroneous, inaccurate, and incomplete as transferred to Ocwen by prior ‘servicers’. Thus, monitor based 2014 settlement ‘compliance’ on erroneous records. So who loses? The people. On and on and on – the fraud goes. Especially for those who cannot afford an attorney or expert.

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