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Unworthy Trusts

livinglies.wordpress.com | March 12, 2019

The simple fact is that the REMIC trusts do not exist in the real world. The parties named as trustees --- e.g. US Bank, Deutsch, BONY/Mellon --- are trust names that are used by permission through what is essentially a royalty agreement. If you are dealing with a trust then you are dealing with a ghost.

Discovery is the way to reveal the absence of any knowledge, activity or reports ever conducted, issued or published by the named Trustee on behalf of the "trust" or the alleged "beneficiaries." Take deposition of officers of the named Trustee. Your opposition will try to insert a representative of the servicer. Don't accept that.

For purposes of clarity I am using US Bank as an example. It is the most common.
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US Bank has NO information about the trust, the servicer or the account for the borrower. Thus the purpose of any deposition of any officer of US Bank should be solely to establish the absence of events and data that should otherwise be present.
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This is why as counsel for the lender, lawyers will not recommend going forward with the refinancing. Your opposition is asking you to accept their word for the "fact" that they represent a creditor who is entitled to payment not just because there is paperwork indicating that, but because they are really owed the money.
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Knowing the truth is a basis for establishing gaps and revealing it to the trier of fact but should NOT be a basis of making allegations that you will be required to prove. It's a thin line and the lawyer needs to be aware of this division, or else you will end up with a burden of proof you cannot sustain and unanswered questions that prevent the closing of refinancing --- unless the "source" of refinancing is from another player in the world of securitization.
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The fact that securitization players would accept the paperwork is only testament to the willingness of all securitization players to engage in such conduct as to maintain an illusion of legitimacy. Other lenders rely on such conduct at their peril. Other lenders do not receive the reward from multiple resales of the same debt.
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So in your inquiries to officers of US Bank you want to establish the following, in order to force the true creditor to come forward (if there is one):

  1. US Bank has no duties normally attributed to a trustee.
  2. The "US Bank" name is basically a royalty arrangement in which the name can be used but there is no further substance to its "role" as trustee.
  3. There is no bank account established or maintained by US Bank for the alleged Trust.
  4. US Bank has never received any money through any means in connection with the subject debt. The borrower's payments to the servicer have never been received by US Bank on its own behalf, as conduit or as trustee for any trust.
  5. In prior foreclosures involving the same trust, US Bank did not receive the proceeds of the foreclosure sale.
  6. US Bank has no reason to expect that it would receive the proceeds of a foreclosure sale involving the subject debt.
  7. US Bank has no mechanism in place where the payment of money to satisfy the claimed debt would be actually deposited into a bank account for the trust that is controlled by US Bank.
  8. The beneficiaries of the trust do not receive any money from borrower payments, foreclosure sales, or prepayments, refinancing or any other monetary transactions. US Bank probably does not know if this is true or not. US Bank has nothing to do with what, if anything, the "beneficiaries" of the "trust" receive or don't receive.
  9. US bank has no information regarding the identity of the beneficiaries of the "trust."
  10. US Bank has no information regarding whether any party is a beneficiary of the "trust".
  11. US Bank has no information regarding the existence of the trust other than the documents forwarded to it for purposes of the deposition.
  12. US Bank does not keep or maintain accounting records pertaining to the trust.
  13. US Bank does not keep or maintain any records or documents pertaining to the trust.
  14. US Bank does not issue reports to anyone regarding the trust or the subject debt, note or mortgage.
  15. US Bank does not include information relative to the business activity of the "trust" or the subject debt, note or mortgage in any report to any regulatory authority, Federal or State.
  16. Except for fee income, US Bank does not include information relative to the business activity of the "trust" or the subject debt, note or mortgage in any financial report published to the public or to any regulatory authority, Federal or State.
  17. There is no "trust officer" appointed by US Bank to actively manage the affairs of the "trust."There is no "trust officer" appointed by US Bank to actively manage the affairs of the subject debt.
  18. US Bank neither accepts nor gives any instructions to anyone regarding the affairs of the "trust."
  19. US Bank neither accepts not gives any instructions to anyone regarding the subject debt, note or mortgage.
  20. US Bank has no power to either accept or give instructions regarding the trust or the subject debt.

Keep in mind that there are experts who believe that the debt no longer exists, and that you are dealing with the ghost of a creditor and the ghost of a debt. This is because the debt was resold multiple times and redistributed to multiple parties (new investors) under the guise of different instruments in which the value of the instrument was ultimately derived not from the debt, in actuality, but from the marketplace where such isntruments are traded. This is an ornate interpretation that has the ring of truth when you examine what the banks did, but this theory will not likely be accepted by any court.

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That theory explains why when appellate and trial courts asked the direct question of whether the creditor can be identified the answer was no. The response was that the courts stopped asking.
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But the issue at hand is whether, pursuant to state law governing foreclosures, a creditor is before the court possessing a valid claim to collect on a debt. If there is, then that creditor is entitled to payment. If there is not, then the claimed "creditor" is not entitled to either payment or foreclosure.

 

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