The witness or declarant or affiant should be someone who says that they manage the account for REMIC TRUST XYZ and that they have received payment on a particular loan on certain dates, after which they stopped. The witness should be able to show when the REMIC trust paid for the loan by producing the records of the account in which the REMIC funds (contributed by investors) were kept, distributed and received from subservicers or Master servicers.
All the banks that are currently taking the position that they can enforce the note and mortgage are doing so without proving the debt or loss or identifying the injured party. Under normal circumstances this would be easy to show — if the REMIC trusts actually had a Trustee that had the powers of a Trustee and if there was a trust with a trustor, beneficiary and terms of contribution and distribution.
As anyone knows who has established a revocable trust for estate planning purposes, the trust is useless unless you put something in it.
So if money is the asset that is being put in the trust, you are instructed by your attorney to go to the bank and open a new account in the name of the trust with you as trustee and providing for successor trustees. Then you deposit whatever money you want to be included in the trust and whatever property you want the trust to have is deeded or transferred into the trust name. It is fairly simple.
If you don’t deposit money into an account bearing the name of the trust and you don’t transfer property into the name of the trust the trust exists only in a theoretical sense. It has nothing in it and therefore the terms of the trust are irrelevant.
So now we come to Deutsch Bank, Mellon, U.S. Bank etc. who all call themselves trustees, but Reynaldo Reyes who is the head honcho at Deutsch dealing with these “trusts” is really VP of asset management and operates completely outside the trust department of Deutsch Bank. He says the structure is “counter-intuitive.”
It turns out that there is no account bearing the name of the trust anywhere, from what we have been told by several independent sources. There is no property or anything else titled in the name of the trust. So the terms of the “trust” are irrelevant there being neither funding of the trust nor any other assets which fall under the control of the “Trustee.” The trustee is actually just another nominee in a long line of nominees that lends there name to the pseudo securitization structure for a monthly fee.
When you read the PSA you see that the real party that holds the strings is the Master Servicer who arranges for subservicing, insurance, credit default swaps etc. So if there was a real funded trust, the real “trustee” as defined by statute and common law would be the Master Servicer. But that doesn’t change the fact that there was no trust account and no assets in the Trust pool. The fact that the named Trustee (Deutsch etc.) allows a third party to claim that the Trust claims an interest in the subject loan is pretty thin. No bank that I know would accept such a chain of authority if a borrower presented it that way.
The allocation of a loan to a Trust may have occurred years before on some database either internally at the Master Servicer, investment bank underwriter of the mortgage bonds or elsewhere, but that actual assignment called for under the PSA never occurred.
Instead, what the robo-signing scandal revealed, was that assignments, endorsements and other indicia of transfer were executed (1) long after the cutoff date causing tax problem to the bond holders or “beneficiaries” if we are calling them that and (2) after the loan became delinquent or was in de fault, which is specifically prohibited by the PSA.
Thus for both reasons the actual named Trustee could not and did not accept the assignment, and it was and is the Master Servicer who never shows up in Court and is rarely named as a party, that attempts through various powers of attorney and other documentation, all fabricated for the benefit of the litigation, who claims that the Trust owns the loan when the Trustee does not actually even assert such ownership. Since the named trustee is the only party that is identified as such, the affidavit or declaration or testimony must come from the said trustee.
By definition this would exclude the subservicer or foreclosure companies of the banks who are the nominees for banks who claim to be the nominee of the creditor which they vaguely define as the REMIC trust. The only person who could sign an affidavit accepting the assignment of a bad loan and out of sequence causing double taxation to the investors would be an officer of the named trustee.
The reason they don’t do that is for obvious liability reasons — the investors could sue the named trustee and say that the trustee violated the express terms of the PSA that require performing loans to be funded or assigned into the trust during the 90 day window provided for by the Internal Revenue Code. The less obvious reason is that there is no person at all working as an officer or employee of the named trustee with ANY knowledge of the subject loan. In fact, it is reported by insiders that none of the named Trustees even know their name is being used in litigation most of the time.
This sequence is corroboration of what I outlined in a few other articles — the point being that the funding and movement of money does not match up with the origination documentation nor any documentation used in assignment, endorsement or transfer of the loan.
The true “creditor” who can show proof of payment, proof of loss is a group of befuddled investors who thought they were buying bonds from a REMIC trust when in fact they were joining an ever-growing common law partnership or series of partnerships, changing from minute to minute as loans were funded.
The manager of that partnership is the Master Servicer — which is the party to whom most discovery requests should be directed since the subservicer can only provide a snapshot of a limited number of transaction types whereas the Master Servicer can provide an accounting for all transactions relating to the subject loan and the purported “REMIC Trust.”
The purpose of the convoluted arrangement claimed by the “pseudo securitizers” is clear. They needed the ownership to be unclear — muddled in fact, such that they could claim ownership long enough to buy insurance on guaranteed losses through contracts with AIG, AMBAC and counterparties on credit default swaps. As “owners” between the time of the transaction and the time of accounting, they get the money while the loss is sustained by the investors.
But that insurance and CDS money was received as agent for the investors and thus is allocable to the balance owed the only true creditors. By allocating those payments to the investors, and reducing the receivable on the books of the investor, the corresponding reduction would be from the mortgages that purportedly backed the bonds. Hence in nearly all cases, the receipt of insurance, CDS proceeds, bailouts and other hedges drives down the amount owed by the borrowers because the creditors are paid in whole or in part.
Allocated properly then the balance due in nearly all foreclosure cases is different than the amount demanded. And the party making the demand has no right, justification or excuse for doing so. This produces a logical result that the homeowners debt balance has been reduced between the homeowner and the investor. The amount of the reduction is not loan forgiveness it is simple arithmetic. Somebody might have a claim for contribution against the homeowner, but insofar as the debt, note and mortgage are concerned, they have been fabricated.
We are left with a stream of money from the investors to the closing agent in which everyone assumed the money came from the named loan originator — a mistaken sleight of hand trick played by Wall Street in order to divert money from the investors and documentation from both the investors and the borrowers. The actual monetary transaction is undocumented except for the wire transfer receipt and wire transfer instructions; and the documented transaction shown on the note and mortgage never occurred.