Deny Everything: It’s All a Lie Anyway
Posted on November 25, 2013 by Neil Garfield
It is hard to wrap your brain around the profound tragedy of greed defining a whole generation, of brilliant minds figuring out ways to take control of all the mediums of exchange. Who would have believed it? Who believes it now? But I was there. I attended meetings in the early 1970′s that laid the foundation for what would be one banking crisis after another as the Wall Street titans plotted to take everything from us — what little wealth we had, what dignity we had left, what lower we had through voting by buying the levers of power, and understanding they could control the consequences.
Yes, deny everything because from the start the mortgage meltdown was nothing more than elaborate fraud on the citizens of the world, the banking and commerce systems that were bringing us together. Now these ruthless sociopathic titans have cornered the supply of money and further seek to corner the markets in natural resources. To what end? They don’t even know. They just want more.
Your note and mortgage were part of a fraudulent scheme designed to defraud investors and government agencies, sovereign wealth funds, thousands if community banks and credit unions eliminating even the illusion of a free market place where everyone had a fair opportunity to grow. Your mortgage and note were evidence of fictitious transactions, as were the initial investments of pension funds and other investors. More fictitious transactions hid the reality while ideological rants reminded us that we should pay our debts but failed to remind us that committing fraudulent acts deserve restitution not rewards.
Follow the money all the way through and you will find the monetary transactions that never match up with the mountain of fabricated, forged paper trails. Follow the money trail and the rush to foreclosure makes perfect sense — that the lowest proceeds from foreclosure were necessary to perfect the PONZI scheme.; how a performing loan is a liability and how a foreclosure puts a lid on trillions of dollars in liability for the intermediaries that made themselves principals in transactions that were simply loans from groups of investors to the borrower.
See how the loans were paid in full at the time of origination or acquisition and how MERS was only a necessary tool to hide fictitious trades to account for the money stolen from pension funds, investors, borrowers government guarantors and of course the most vulnerable — the buyers.
Do it through discovery and ask the right questions, demand the right documents in the money trial and compare them with the pile of worthless paper reciting transactions that never occurred. Deny the debt, deny the note, deny the mortgage, deny the assignments, deny the balance they say is necessary to bring the loan current, while investors lose trillions and the proceeds of most payments never went to investors or borrowers but to the intermediaries, the conduits of these pernicious transactions. Follow the Servicer advances and see where that takes you and compare it to the demand for funds from the borrower who owed far less, if anything, to the creditor who was being defrauded by the Wall Street titans.
Not all loans are the same, but most of them followed the same general patterns of conduct. If you are persistent I discovering the truth, it is there to be found. And any good trial lawyer will reveal that truth. Deny everything and make them prove the loan. They can’t. .
Related
Filed under: foreclosure
@Charles-
WI STAT; 409.318 No interest retained in right to payment that is sold; rights and title of seller of account or chattel paper with respect to creditors and purchasers.
(1) Seller retains no interest. A debtor that has sold an account, chattel paper, payment intangible, or promissory note does not retain a legal or equitable interest in the collateral sold.
I have played on UCC 9 as well.I am just pulling on bad memory here, but if you have a bifurcated note & mortgage that becomes non negotiable, the UCC does not apply. Correct? Incorrect? Coffee is not circulating yet…. I am not admitting I owe anybody. What I do admit- is I need some fricken pointers here as to when you find new things out….
HOW DO YOU INTRODUCE IT! Does everything you want to accuse them of have to be in your counterclaims? EX: can you throw a RESPA violation into a pleading when you find the existence of it, which you were not aware of before? Same with anything, new documents, whatever…..motion to amend counter claims? It’s been wayyyy too long for that. I have asked this like 5 times dammit someone answer please. (awaiting MSJ, is where I am) HAPPY TURKEY DAY! GOBBLE GOBBLE!
Brick Walls at Every Door …
No Way Out! No Way Out! Thee Sit & Pout!
No Way Out! No Way Out! Yee Sit & Pout!
Brick Walls at Every Door …
Once it goes In … It doesn’t come Out!
You cant take it with you when you Go ..
Just Make Sure It Stays with the Family Flow…
Thanks for the great advise, I agree completely.
Personally- I would like to talk to the attorney for the servicer- say, hey, you know what, I am sure you don’t want to dive into all this…..unless you are schooled on all this securitization crap and want to dive into the loan being pooled, for how much, where it is at, the rules for that, who handles the payments to the investors, where are the certificates etc etc etc…..why not just speak with your client and give me my house, eh?
What are your thoughts on that? The firms are bogged down, they do not want to have to get into all the nitty gritty, but I do, and I will, so…
AWESOME
I UNDERSTAND what you went through to get there,
emotion here is JAZZED
I have emailed you and looking for my boxing gloves. Thank You Jaime Congrads again
http://www.sec.gov/Archives/edgar/data/1109651/000087562606001708/b485pos.txt
go to the very bottom and scroll up to “rick factors”
Charles, that will go right down to the exact number of HAMP loans, loans, non hamp mod loans, loans in Pre-foreclosure, 30/60/serious delinquent IN YOUR CITY, IN YOUR STATE. Great tool.
I still do not know HOW to put this all together..I mean i do…but I am in a pre msj and need help in ‘the construction’ of how when you find new crap you introduce it. I anyone can point me in a direction with that (WI) awesomeous. Find new evidence, they didnt have the note- the pooled it late etc etc – can you just throw that in there?? Do you have to ask to enter additional evidence? Can you just throw it in there as ” submission of new evidence” ? monday opposing was not even there it was by tele and the Judge did not want to see nothing, he wanted to give me time to see the mod and accept it. I got it today. It says nothing ,more or less -than ‘your behind, this is your payment, pay it 3 installments to show good faith’ standard sign and return.You must comply with this schedule or it will result in a termination, dah dah dah. NOthing more. Is that IT? OHY!
Happy early TURKEY DAY ALL! I’m lovin everyone’s posts! They have been really ‘connected’. It’s nice to see the love lol!
Now go make sure you find your xxl trousers for tomorrow!
That is why BAC and BOANA tried to get FC under CWHL 08 FRAUD SUIT
…. the kicker… none of the buttwipes are in the mortgage or note as lender.
I totally agree–the judges are complicit. Trespass Unwanted said it really well the other day, something to the effect that these issues have been presented to the courts in a myriad of ways and the judges know this shit isn’t happening in a vacuum, and that because of those things, the judges can suss out what’s really going on. There is more than enough evidence just in the public domain for judges to know what’s going on. This idea that somehow judges just aren’t hip to the fraud because they just don’t know enough about it is ludicrous and inexcusable.
So glad to hear the great news….happy happy happy, made my day!
Have a great holiday
But I am truly puzzled that the day before yesterday the “judges were impartial because”
Today we acknowledge that the legal profession has become nothing more than government sanctioned racketeering. It’s all a lie!
And these so-called “officers of the court” have successfully bullied and lied their way to stealing 6 or 7 million homes?
Blame the judge? Don’t blame the judge? Huh?
The judges are the problem now. They are complicit. There’s no other explanation for the willful blindness they confer to the bar members on the other side of the law.
GNMA II GTD PASS THRU CTF MULTIPLE ISSUE whatever on finra. I have come so far so to even find the Master custodian agreement. The note info is not there because the document custodians do not have to report that anywhere to be public. Again, this is my belief how this crap works, or a rough thinking, but the Depository has the book entry info, – those “pink slips” which are HARD to find if at all if you are not buying them, the CTPA has the fund “flow” the DC just verifies correct paperwork and does a really shitty job..OR the issuer is a self holder and you don’t find natta because they pooled an imaginary figment of your note. The only way I can see a PSA ‘making’ a trust is by allowing for the registration of the securities? I could be wrong, but I am fairly sure i have no trust. Nor trustee. JPM is/was my CPTA. FedREs BoNY depository. I have all these pool numbers, cusips, all they have led me to is actual investors and ‘schedule of Assets Held for Investment Purposes’ Which is kind of fun. Monsanto, some nuclear decommissioning thing, prudential something, a bunch of others.Maybe some just do not have a trust? My theory`ish-ness anyways….
A debt collector must provide the consumer with
certain basic information. If that information was not
in the initial communication and if the consumer
has not paid the debt five days after the initial
communication, all of the following information
must be sent to the consumer in written form:
• The amount of the debt
• The name of the creditor to whom the debt is
owed
I have no idea, but I would want to give Neil, the benefit of the doubt, or maybe just ask, is it a possibility he has left out a finishing statement or word, or possibly miss spoke? We all make mistakes especially when under stress, or piles of work.
Give the guy a break, he works very hard.
I will read, read, and re-read your information, thanks for the education.
The basic economic principles of the secondary mortgage market apply to MBS transactions. The MBS investors, known as trust-certificate-holders, pay the aggregator of the mortgage pool, also known as the “seller”, a premium for the present value of the future cash flow from the mortgage pool. This is commonly known as the “discount”. The seller’s profit comes from the “spread”. The investor’s benefit is receiving stable cash flow from an investment grade security.
Real Estate Mortgage Investment Conduit or “REMIC”
However, RMBS (Residential Mortgage Backed Securities) transactions are different from traditional loan sale transactions in one remarkable way. RMBS transactions are so designed that they are subject to income-tax taxation at the investor level only. REMIC trusts avoid entry-level taxation. The millions of dollars of income generated annually by the thousands of mortgages in the mortgage pool are taxed at the investor-certificate holder level only.
To accomplish this, the mortgage pool must be set up as a Real Estate Mortgage Investment Conduit or “REMIC”. If the mortgage pool is not set up as a REMIC, the income from the pool could and would be taxed twice by the IRS (and the states), once at the pool level and then again at the certificate-holder level. It is therefore crucial that the REMIC rules governing RMBS trust construction are followed to the letter of the law. REMICs are created as New York common law trusts so that the trust assets are insulated from creditors who may seek to “claw back” trust assets that were transferred from insolvent transferors.
To achieve REMIC status, the RMBS must meet three specific criteria:
1) First, the RMBS mortgage pool must be static. Once it is created it cannot accept any new assets into the pool. The assets must be specifically identified and vested in the trust within a statutory [IRC §860(d)] time frame.
2) Second, the trust must take good title, in its name, to the assets (mortgages and notes) deposited into the trust.
3) Third, the assets in the trust must be insulated from creditors. This is accomplished with a series of fully documented sales (negotiations) starting from the originator and culminating with a sale from the Depositor to the Trustee on behalf of the Trust. If this series of sales is properly done, the trust assets cannot be reached by creditors in the event the seller/originator of the loans that constitute the corpus of the trust files for bankruptcy. This is called “bankruptcy remoteness”.
In order for the RMBS transaction to meet all three criteria a trust must be created. The trust creation document is usually referred to as a Pooling and Servicing Agreement (“PSA”). The PSA is the document that both creates the trust and governs all trust activities. Securitization failure or REMIC failure occurs when the loans intended for the trust fail to be vested within the trust in accordance with the rules set forth in the trust document.
NEW YORK AND DELAWARE ARE UNIQUE AS THESE STATES REQUIRED THAT ALL TRUST ASSETS BE IN THE TRUST AT CLOSING AND ANY ACT IN CONTRAVENTION TO THE TRUST IS VOID.
New York and Delaware law are unique in that these two jurisdictions provide a protective “void” cocoon over the trust to protect the beneficiaries [certificate holders]. The void ab initio of New York and Delaware law operates to exclude from a trust, as a matter of law, those assets that would or could threaten a trust asset’s[s’] tax fee pass through status and/or bankruptcy remote status. California and other states do not have such holdings as any acts there may be voidable or void. It is such confusion that creates odd holdings in states such as California.
Securitization failure destroys the marketability of title to real property. EPTL §7-2.4 in the context and construction of New York’s trust law as a whole and why it is relevant to foreclosure. Courts must also understand the historical context and application of ultra vires acts of a trustee being null and void ab initio. Without understanding the reason for applying the statute, EPTL §7-2.4 appears to be a draconian rule, with a resulting draconian “remedy” for what appears to be a ministerial error by REMIC trustees and those parties that created and funded the REMIC trusts.
The failure by the above-mentioned participants to abide by the terms of the REMIC trust is anything but a ministerial error. Ultra vires acts of REMIC trustees result in devolution of title to every deed that was and will be passed in a REMIC foreclosure. The ultimate outcome of these ultra vires acts is that every deed passed pursuant to a REMIC foreclosure is a nullity rendering the transferees of title holding nothing more than a worthless deed; thus the necessity of applying EPTL §7-2.4 in its literal interpretation.
Several jurisdictions interpret New York Estates Powers and Trust Law Section 7-2.4 in the context of securitization failure. These courts have declared that transfers to the trust that violated the terms of the REMIC Pooling and Servicing Agreements are therefore void ab initio. If the transfers to the respective trusts are void then millions of foreclosures have been and are being prosecuted by parties that have no interest in the underlying note obligations. Likewise, many liens and deeds of trust were, and are now, in the hands of entities that do not possess the right to enforce the equitable remedy of foreclosure.
Very often the transfer of the loan to the trust occurred years after the specified “cutoff date” date, if at all. Pursuant to New York and Delaware law the acceptance by the trust in contravention of the terms of the trust is void.
As a practical matter the transfer date is an evidentiary issue that would require discovery and a determination at a motion for accelerated judgment or trial. All the information pertaining to the factual issue is in the exclusive possession of the foreclosing entity or their predecessors in interest. The public real property record may contain some information relevant to the date of transfer of the loan. However, the record of document transfers between the participants is wholly proprietary to the trustee and the appointed trustee document custodian(s).
HISTORIC REVIEW IS RELEVANT WHY ACTS IN CONTRAVENTION TO THE TRUST DOCUMENTS ARE VOID.
The legal principles and policy considerations of EPTL §7-2.4 date back to ancient common law. EPTL §7-2.4 was born out of those sections of the New York Code that dealt with title to real and personal property owned by a trust. In 1966 the enactment of EPTL §14-1.1 repealed all those laws and were consolidated into one statute, EPTL §7-2.4. The New York Code contained special provisions that stated the common law principal that any person with actual knowledge of the fact that real or personal property was owned by or titled to a trust was charged with constructive knowledge of the terms of the trust.
“WIDOWS AND ORPHANS LAWS” CREATED TO PROTECT INNOCENT PEOPLE AND ENSURE TRUSTEE’S UNDERSTOOD THE LEGAL DOCUMENTS.
These were known colloquially as the “widows and orphans laws”. These laws were written so that an evil, corrupt and mean spirited trustee could not unlawfully sell trust assets to an “innocent” purchaser to the detriment of the trust’s purpose. The converse is also held to apply wherein a trustee exceeds its authority to acquire assets. Any purchaser/seller of assets to or from a trust is charged with having knowledge that the transfer was with the trustee’s powers. In In The Matter of Pepi, 268 A.D.2d 477 (2nd Dept. 2000) the court held:
Since the appellants had reason to know that the conveyance was made in contravention of the trust, the transaction is void (see, EPTL 7–2.4; see also, National Surety Co. v. Manhattan Mortgage Co., 185 App.Div. 733, 736–737, 174 N.Y.S. 9, affd. 230 N.Y. 545, 130 N.E. 887; Boskowitz v. Held, 15 App.Div. 306, 310–311, 44 N.Y.S. 136, affd. 153 N.Y. 666, 48 N.E. 1104).
“In Clark v. Whitaker, 19 Conn. 319, (Connecticut Supreme Court, 1889), it was held: ‘Where a party was not personally engaged in the acts of taking possession, using, and disposing of the property in question, but co-operated with the principal actor, by aiding and abetting him in doing those acts, and subsequently recognized and approved of them; he was held to be chargeable with the conversion.’ In Moore v. Eldred, 42 Vt. 13, (Vermont Supreme Court, 1869) it was held that if one, having reason to believe that personal property in the possession of another person has not been lawfully acquired, advises or co-operates with such person to induce him to make a sale of it, he may be held liable directly as for a conversion. In Cone v. Ivinson, 4 Wyo. 230, 35 Pac. 933, (Supreme Court Wyoming, 1894) it is held that one who instigates a conversion is as much a principal as the one performing the act of conversion.’ These authorities are directly in point, because a trustee who wastes the property of an estate, and is guilty of a devastavit, converts that property and may be held liable in an action for conversion. Whether or not, therefore, the defendant may be held to have acted as vendor of a part of the mortgage, or as agent for the guardian in the purchasing of the mortgage interest, or even as merely aiding or abetting in the use of these funds, known by him to be unlawful, it has become liable to the plaintiff for the injuries sustained. The judgment should therefore be reversed, and judgment directed for the plaintiff as demanded in the complaint. Findings and judgment to be settle upon notice.”
New York law states that an ultra vires transfer of assets to or by a trustee on behalf of a trust is void rather than voidable. If the transfer were voidable then the damaged party would have to bring an action against the malfeasant parties to have the transfer declared void. In New York the transaction is void ab initio, just like it never happened. The trustee’s defense would have to be that it had no knowledge of the terms of the trust. This would of course be an absurd proposition and would be stricken. The trustee has actual knowledge of the terms of its own trust.
The person or entity that has authority to make lawful transfers of the note and mortgage within the RMBS varies depending on what stage of the transaction the transfer was made. The transfer to the trustee must be lawful pursuant to a document or writing that does not create a presumption that the transfer violates state law or other controlling trust document. This is not a form over substance argument. In RMBS transactions, a violation of state law or of the PSA would open the trust to liability from creditors and the loss of tax free pass through status to the asset[s] that were transferred in violation of the trust document.
In particular, the entity that presumably needs standing to enforce the mortgage needs to prove as a threshold matter that they have the lawful authority to do so. Since there have been numerous transfers of the note and mortgage the downstream holder of the note and mortgage must rely on the proper and lawful transfer of those documents throughout the chain of possession and title respectively.
YOU CANNOT GIVE WHAT YOU DO NOT HAVE.
Devolution in title due to securitization failure has consequences before and after transfer of title. Prior to a transfer of title, devolution is relevant to the identity of the entity that has the authority to affect the satisfaction, modification or consolidation of the mortgage. After transfer of title, devolution is an issue because the entity that satisfied or foreclosed the mortgage had no authority to do so, and the person who took title, either took subject to an unsatisfied lien or subject to a defective foreclosure.
The entities that had the authority to foreclose did not foreclose. The wrong party foreclosed and either holds title or has transferred title to an unsuspecting transferee who believes that it is a bona fide purchaser, whereas in reality, that person is anything but. Transferees of foreclosure deeds have taken title from an entity that had no interest in the property to transfer. Nemo dat quod non habet. You cannot give what you do not have. Nemo dat trumps bona fide purchaser every time. This is why we purchase fee policies when we buy real estate.
TITLE INSURANCE IS NOT MARKETABLE TITLE
However, finding a title insurance company that will insure your fee interest in real estate is not the same as receiving marketable title. Insurable title is not marketable title. Marketable title is title that is free from reasonable doubt or any sort of threat of litigation. In the case of real estate that is encumbered by a mortgage that was placed into an MBS the source of the satisfaction of the lien may be in question.
In Voorheesville Rod & Gun Club Inc., v. E.W. Tompkins Co,. 82 N.Y. 2d 564 (NY Ct. App. 1993) The Court of Appeals defined marketable title as follows:
We have said that a “purchaser ought not to be compelled to take property, the possession or title of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one which, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value” As can be seen from these definitions, marketability of title is concerned with impairments on title to a property, i.e., the right to unencumbered ownership and possession . . ..
A break in the chain of title to the mortgage results in the fee owner being unable to transfer title to any person free and clear of encumbrances. If the satisfaction of mortgage is made without the authority of the person entitled to enforce the note and without the authority of the last lawful mortgagee of record, the note is not discharged and the lien continues to exist.
DEVOLUTION IN TITLE TO THE MORTGAGE
Devolution in title would occur if any party other than the last mortgagee of record executes the satisfaction of mortgage. Devolution is simply a break in the chain of rights in real estate. The only party that can affect an interest in real estate is the party [or that party’s lawful agent] that has an interest in the real estate. Every state defines “interest in real estate” by statute or by common law interpreting statutory construction.
The issues in MBS transactions concern the chain of authority derived from the original mortgagee of record. We will begin with the assumption that the original mortgage and note were prima facie valid. The only party that has the right to assign or transfer those rights in the mortgage begins with the original mortgagee. Likewise, the only entity that has the right to exercise rights under the mortgage, such as the right to satisfy the lien or foreclose on the lien/deed of trust is the entity that is the last mortgagee of record or its successor and or assign.
Seen in this context, there is no difference in the rules for any entity that claims an interest in real property. The authority to affect an interest in real property can only be vested in the entity that is designated on the instrument that created that particular interest. This same principle applies to deeds, mortgages, agrarian, riparian, leases, air, subterranean, easement, license, restrictive covenant and every other stick in the “bundle” of rights associated with ownership of rights in real property. The reason we maintain a public property record is to give the world constructive notice of the identity of the entities that hold rights in real property and the time those rights were created and transferred.
REAL PROPERTY TRANSFERS ARE GUIDED BY A STATUTE OF FRAUDS
Every jurisdiction has laws that govern the creation of these rights including a statute of frauds that demand the rights are created by an instrument in writing, how the person granting those rights is given the authority to do so, how or if the instrument needs to be acknowledged [notarized] and if the instrument needs to be recorded in the public land record to be valid.
The lender seeking to enforce the loan can choose one of two remedies. The first is the right to enforce the lien “at equity”. This involves the exercise of the power of sale (non-judicial) or obtaining a judgment of foreclosure and sale and selling the property at auction (judicial). The other remedy involves the entity enforcing to disregard the lien or deed in trust altogether and choosing to seek a money judgment only. This is referred to as the remedy “at law”. The entity enforcing must choose a remedy. It cannot elect both.
Foreclosure is the involuntary transfer of title pursuant to judgment of sale (judicial) or power of sale (non-judicial). What is actually being foreclosed is the fee owner’s right of redemption. The right of redemption can only be foreclosed by the entity that has the right/authority to enforce the contractual debt (note). The property must be titled to the successful bidder after the sale or to the plaintiff if there is no successful bidder. In New York the RPAPL requires that title passed post-sale be “sourced” via the recording of the mortgage or assignment of mortgage prior to the sale. The referee cannot pass title until the [foreclosed] mortgage is recorded.
In New York the referee can only transfer title under authority of the judgment of sale. This is to ensure that any successive purchaser has certainty that title was derived pursuant to lawful sale by a lawful party entitled to enforce not only the underlying indebtedness but also by the party who was entitled to enforce that indebtedness to foreclose the borrower’s [fee owner] right of redemption. Similar principles apply in other jurisdictions under different statutory constructions. Nevertheless, the overriding policy considerations are the same; the chain of title to real property, [via the lien or deed of trust] is preserved and remains certain throughout the foreclosure process.
The issue in RMBS foreclosure is that the entity foreclosing is either the trust itself or the trust’s agent designated as such by agreement. If the trust cannot or could not take lawful possession of the note due to a restriction in the trust agreement then the trust has no authority to affect any aspect of the loan’s servicing, management, right to declare a default or foreclose. This is the definition of securitization failure. The trust does not and cannot ever own the loan.
REMIC FAILURE
REMIC failure is a proper defense to mortgagors because REMIC failure destroys the marketability of the mortgagors’ title. Every mortgagor has a right to know who owns their loan. Successor mortgagees, mortgagees that are not the original payees on the loan, claim that mortgagors do not have standing to assert the ultra vires/REMIC failure defense. However, every mortgagor has the right to know the identity of the entity to which they should pay. Mortgagors also have the right to an explanation as to how the presumptive mortgagees obtained “title” to the mortgage or deed of trust. REMIC mortgagee’s classic argument essentially states that mortgagors have no right to know how the successor mortgagee became the successor mortgagee. This is absurd.
The legal result of successor mortgagee’s argument is that successor transferees of title to the real property, whether through foreclosure or arm’s length contractual transfer, have no right to know if they are receiving title to real property free and clear of liens or encumbrances. If the entity that purports to satisfy the lien has no authority to do so then the mortgagor/homeowner cannot pass marketable title. Likewise, the purchaser has not taken marketable title and that title may be subject to attack by the true owner of the note.
Transfers of loans to REMIC trusts fail due to the ultra vires act of the REMIC trustee. The commonest and most easily discovered ultra vires act as relates to an affirmative defense to the foreclosure is the trustee’s acceptance of the loan past the trust’s cutoff date. The cutoff date is usually defined in Section 1.01 of the trust’s Pooling and Servicing Agreement. The PSA is the document that creates the trust. All the contractual obligations between the trustee, the certificate holders, the depositor and the master servicer are contained in the PSA.
A breach of any contractual obligation by the trustee with relation to any loan is an ultra vires act. An act by the trustee not specifically granted by the trust document is void as per the rule pertaining to common law trusts created under the laws of New York. This rule is in place to protect the trust and the certificate holders from acts by the trustee or its agents that are ultra vires of those powers specifically granted to the trustee. The purpose behind New York as the choice of law jurisdiction that govern these trusts is that, in New York, ultra vires acts of a trustee are treated as if they never happened. This has been the rule in New York for well over one hundred years.
The affirmative defense that plaintiff cannot be the proper party in the action is the mirror image of the counterclaim for a declaratory judgment as to the identity of the entity that has the right to enforce the loan. A demand for trial is made in the counterclaim concerning the determination of the identity of the entity that is the person entitled to enforce the note and assert the equitable remedy of foreclosure. In this sense, the factual basis for the affirmative defense is similar to the counterclaim.
However, the difference between the affirmative defense and the counterclaim is that the affirmative defense of “plaintiff lacks standing” is only asserted against the plaintiff. The counterclaim involves naming every party to the REMIC transaction that had an interest in the note. A determination by the court that plaintiff lacks standing is non-instructive as to the identity of the person entitled to enforce.
To determine the identity of the proper party with authority to enforce the note, every entity that had a role in the RMBS transaction would have to be a third party defendant named in the counterclaim. In other words, defendant may owe someone money, but it is not the trust. Once the court determines it is not and cannot be the trust, the third party defendants will have to fight it out amongst each other. The end result is that foreclosures commenced in the name of an improper party will be dismissed. The mortgage lien still exists against the property in the name of some entity.
It is clear that the REMIC is constructed as a common law trust with a “commercial” purpose. This alleged dual function has raised form versus substance arguments as to REMIC classification and treatment under New York Trust law. This issue is just being addressed by courts in New York and various other jurisdictions with widely varying results.
You are correct that court rules are won on facts. I don’t talk about the facts because honestly I have a hard time understanding all the facts, and I don’t want to talk about things I do not fully understanding.
It is also important to see all sides of a point of view and I do speak from mine. Thanks to you as well, for bringing your view point it’s is very helpful. There are times I need the facts and there are times I need to address the emotional impact this has had on all of us.
Thank You for all the support I get here. Jaime
Thank you, that did make me feel better knowing someone is listening.
We walked away, it was in a time when so few understood what was happening, we knew no different.
I don’t know how I would react today faced with leaving my home with the knowledge I now have…. I take that back, I do know how I would respond; like always for me ” I do what is the right thing the correct answer is, what is the best thing to do given the choices in front of me.” always do the right and morally correct thing, this will reflect back through your children’ eye’s.
For me and my family the stakes were very high, my children’s lives were tied to our home, our family. My husband and I took being foster parents very seriously, I loved it, it was tied to my very soul, it was my breath, my thoughts, my life, I loved everyone of these kids that passed through our doors. For me, for my children, our family the loss of our home was the loss of our family, our way of life, my heart.
Thank you again and have a wonderful holiday
I say LAW, FACTS, RULES , CASE LAW.
I get very emotional thinking about this horrific thing against mankind, sure I have cried a river,
but when it comes to court, there is no useful emotion that will serve you, just: law, facts , rules and case law. these are your tools.
not a lawyer prose, just my opinion.
I Love you all.
@4closed30kids – I am sorry. I feel your pain, to a lesser degree however. If anything, know your words do more than just sit in a post. They do more than that. Many people will have a spill fest on here (guilty) and see no one reply’s to what they have wrote. Most people on here cannot help anybody anyways but what they can do, ** this is for all you that have done this, been through court, won/lost and do not say jack shnabbit- or if you know of any ‘thing/way’ to throw out there and you do not**Granted most ppl have, many, many times, this blog is so scattered to it is ridiculously hard to locate the comments that do contain useful info***ANYWHO – more people than you know read these blogs. When normal day to day people post their struggles,their attempts, success, whatever it may be….it gives a bigger picture of what has/is happening and more help to me personally than most other things. You wrote of your kids earlier and I could not help but think “that will be”. My kids are little still and the way our life has changed because of this court crap, were at the top edge of that swirling whirlpool before it sucks you down through the drain. I have become obsessed. Many of us have. Even long after the fact. I do not want that. I want my house but I have a badddd hankering to destroy it and let them have the POS. It is not worth the ruin that can so intimately disintegrate a childhood.
And I am starting to think I AM really delusional.
1.- It is fucking RIDICULOUS one needs a lawyer on their side if they have some court know-how, can speak well and already has SOLID PROOF. Ridiculous.
2. – Deny everything, admit everything…..sing….I have said from the day I was on here…..It’s all in the Judges hands. If he is not interested, your kinda SCREWED.
How many people have we heard from that have been restricted from entering key things as evidence, not heard at all, passed off like a bum, ….people that had the downright worst things happen to them…..it’s all up to the Judge.
I long for the moral men and women that started this great country. I am sure they had their faults, but at least they tried to hold on to moral values.
I long for the innocence I had, my hopes and dreams to make a better life for my son are gone now.
My dreams have gone and I am now faced with fear and not trusting of others. It has made a profound difference in who I am as a person.
Instead of the sweet person I used to look at in the mirror, I now see anger, sadness and disappointment in my eyes.
Instead of dreaming of a house with a white picket fence and giggling children strung about, I think of my families safety, shelter, warmth, food storage, water storage, and tucking money away, no not in a bank, I don’t trust them anymore.
I long for the days of innocents, sweetness, warmth and strength, I got from being a part of this once great country.
I do wish all of you a happy and safe holiday.
I just wanna be your lover
No matter how it ends
No matter how it starts
And I’ll do mine
Forget about your house of cards
And I’ll do mine
Voltage spikes
Throw your keys in the bowl
Kiss your husband goodnight
And I’ll do mine
Forget about your house of cards
And I’ll do mine
Denial, denial
Denial, denial
Your ears should be burning
don’t wanna be your friend
I just wanna be your lover
No matter how it ends
No matter how it starts
And I’ll do mine
Forget about your house of cards
And I’ll do mine
Voltage spikes
Throw your keys in the bowl
Kiss your husband goodnight
And I’ll do mine
Forget about your house of cards
And I’ll do mine
Denial, denial