From GG: Information on curious plaintiff names for banks in foreclosure

These are excerpts from a mortgagor to his advisor questioning the fact that US Bank i now filing foreclosure actions in the name of a “Trustee” that has ownership of certain “US Backed Securities”.

See the original post by Neil Garfield at https://livinglies.wordpress.com/2017/10/09/the-implied-trust-and-discovery/#comment-483281

Was that nonsense even recorded against title?  I bet not.

Look at the wording very carefully. It is their Achilles heel:

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, FOR RESIDENTIAL ASSET SECURITIES CORPORATION, HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-EMX4

Do you see any trust named?

Here is the wording I suggested to my client, subject to checking with local counsel:

Attorneys for the putative plaintiff have filed an action for unlawful detainer against this defendant. The action is brought in the name of an implied trust, for which US Bank is designated as trustee. An implied trust cannot be Plaintiff or Petitioner or party to any legal action. Besides lacking legal standing it lacks legal existence. And without an existing trust, the mere naming of oneself as trustee does not create or refer to a trust unless a trust ac tually exists.
The attorneys referenced the action as U.S. Bank versus Edstrom. But U.S. Bank is obviously not a party to this action except as an agent, trustee or representative of the implied trust.
Defendant has raised defenses that include but are not limited to whether the implied trust actually exists, whether U.S. Bank has any legal authority in a representative, agency, or trustee capacity and further whether the self-proclaimed servicer for the implied trust has any legal authority to administer the putative subject loan.
Based upon circiumstantial evidence and disclaimers published by all the parties who seem to think they have an interest in foreclosing the subject property, the answer to all of the questions is “No.” This accounts for the obfuscation in discovery which would reveal the truth quite easily and simply.
Accordingly, defendant served discovery upon the attorneys for the putative plaintiff. Simple logic dictates that if the trust does not in fact exist or if the trust exists but never acquired the putative subject loan, then the plaintiff does not exist, (or it has no legal standing), the attorneys do not have a client, U.S. Bank has not stated a basis for being named in this action, and the self-proclaimed servicer is deriving its apparent authority from a nonexistent trust.
Or the claims of owernship or authority arise from a party or trust that never entered into any transaction under which such a party or trust purchased the putative subject loan nor any transaction in which such a party or trust purchased the rights to enforce the debt, note, or deed of trust.
Despite numerous attempts by the defendant to obtain compliance from the putative plaintiff, defendant has been unable to obtain any actual answers or verification of even the evasive answers.
The verification submitted by counsel for the putative plaintiff is signed by an employee of Ocwen loan servicing. It states that Ocwen is the attorney-in-fact for the putative plaintiff. Despite numerous attempts by defendant, the attorneys for the putative plaintiff have been unable or unwilling to reference or provide an actual document in which Ocwen is appointed attorney in fact, much less the scope of authority of the so-called attorney in fact.
The alleged “verification” does not state anything with respect to the truth or accuracy of the response to defendant’s request for production of documents, set one. Instead, it is signed by an individual who claims to be a senior loan analyst for Ocwen, and evades the language of verification. The document plainly states that the verification is based upon information and belief and not personal knowledge. It also fails to state that the response is coming from the records of the putative plaintiff.
The response to defendant’s special interrogatories, set one contains the same defects. The same is true to the response to defendants form interrogatories – general, set one.
NOTE: The reason for the absence of language indicating that the records of the Plaintiff were examined is that this would cause the signor to commit perjury, inasmuch as the trust does not exist and has no records, has no bank account, no assets, libailities and no business.
Based upon the apparent unwillingness of the alleged attorneys for the putative plaintiff to comply with the requirements for a response to discovery, defendant seeks an order from the court compelling appropriate responses to defendants discovery together with appropriate verification in accordance with the Rules of Civil Procedure.
Defendant requires an actual answer from an actual party in order to prove the lack of standing and lack of authority to represent by the attorneys, the named plaintiff, the alleged trustee, the alleged servicer and the absence of any actual power of attorney or even access to records of the named plaintiff, if it even exists. Defendant can think of no better party to  give the asnwers than the Plaintiff if it exists, and no worse party than Ocwen or any other servicer whose compensation is rooted in foreclosure not administration of loans.
The many trevails of Ocwen as set forth in published cases and news reports, the settlements admitting or indicating that they failed to perform basic accounting functions and misled homeowners into foreclosure forms of cloud of incredulity in which if Ocwen seeks to assert itself in some way it must proove its assertions without any legal presumptions which are normally used in lieu of facts that are widely known to be accurate and uncontested or admitted.
Based upon 10 years of work as a forensic analyst and investigation into dozens of other cases in which these parties have asserted nonexistent rights to purported loans, defendant believes that the trust does not exist, that no transaction ever occurred in which the name of the trust was used to purchase the alleged subject loan, that US Bank has no authority as trustee or agent for anyone who does own the alleged subject loan, and that Ocwen possesses no right, title or interest in the subject loan nor any right of administration of the loan on behalf of of any party meeting the definition of an actual beneficiary under a deed of trust.
The opposing group of parties are the only parties that have access to the actual evidence that would prove defendants defenses. There is no way to obtain such evidence without getting compliance from those parties.
Defendant hereby challenges the authority of opposing counsel in that it appears to be claiming to represent a plaintiff that does not exist.

 

Comment from Joanne;

It seems to me, once the Bank is served with discovery, it has to show its standing as a real Plaintiff/Trustee of an existing Trust agreement backed by the securities it says it is backed by and the Trustee would also have to be granted powers to sue and be sued regarding mortgages backed by the securities.

You’re right, though, the whole set up seems fishy.

UPDATE:  Comment received by email:

HI, Ms. Denison;

I was copied on some comments you made to the matter of US Bank National Association as Trustee for xxxxx, yyyyy, but no “trust” specified.
I would expand on that train of thought a bit.  I have seen the following repeatedly:
“USBank, Nat’l Assn as Trustee for Bear Stearns Asset Backed Securities I Trust 2006-AC1, Asset-backed Certificates, Series 2006-AC1, Plaintiff”
Now when this is taken apart, yes there is the word “Trust” in the name, but there is also coupled in there the reference to “Certificates.”
“Certificates” are not people.  Certificates are mere pieces of paper, and as such cannot stand before the Court.  The Descriptive does NOT say, “for the Certificate holders of the asset-backed Certificates, ” etc.  “Certificate-holders” are real people, and could in theory at least have a real grievance, thus have both Standing and the Capacity to Sue.  The “pieces of paper” by themselves have no such capability.
What is your take on this?  I get this constantly from USBank mill attorneys in parctice.
Cheers,
Jan van Eck
Thanks Jan.  I think that neither the Trustee nor the Certificate holders have the right to foreclose on a mortgage.  I understand Fannie May, who backs most of home loans is still in bankruptcy and under a conservatorship which means many home loans cannot be foreclosed upon if the loan is actually held by Fannie May. The Trustee in BK has to sign off on the complaint and hire the lawyer.
Both a Trustee and a “Certificate holder” I think have to have an agreement from US Bank NA that they can pursue a foreclosure.
It’s a crazy foreclosure world out there.
I assume they do this to limit liability, but as long as US Bank’s name is shown as Plaintiff, there is no real limiting liability regardless.
JoAnne
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s