Posted on August 1, 2011 by Neil Garfield
PRO SE LITIGANT NAILS US BANK — NDEX WEST SHELL GAME
NOTABLE QUOTES FROM CASE:
“A motion for relief from the automatic stay must be prosecuted by the real party in interest… “party in interest” under section 362 must be determined on a case by case basis, with reference to the interest asserted and how that interest is affected by the automatic stay.” [Court refers to In re Veal, 9th Circuit, BAP 2011].
“The problem with this Motion lies in the fact that three different proceedings have now been prosecuted in the state court and in this bankruptcy court by three different entities.
“If USBNA was the wrong party to bring the first 362 motion, then by the same logic the court is not persuaded that the Terwin Trust is the right party to enforce the U.D. Judgment which was not issued in its name.
“The Terwin Trust offers no evidence to suggest that the entity identified in the court pleadings and the U.D. Judgment as “U.S. Bank National Association as indenture Trustee” even exists separate from the specific trust(s) for which it is supposed to serve.” (e.s.)
By Dan Edstrom, Senior Securitization Analyst, Livinglies
I am not a lawyer and this is not legal advice. This email contains my opinions and is for educational purposes only.
This case is HUGE for what it says, which is exactly what Jim Macklin and I have been saying. In my (non-legal) opinion, California Civil Code 1558 applies (although it was not mentioned directly in this case). This case will have an impact in a HUGE number of cases where loans were securitized. This is because in a large number of cases we have analyzed (including our own cases), no trust is identified. Or where a “trust” is identified, the name given is not the actual name of any trust. In many cases they list the names of the certificates and not the legal name of the trust.
This case shows that you should focus on these issues where they apply. Also remember that where a trust is private, there is no publicly available document showing that the trust was actually created. In my opinion, without presenting the trust document (Pooling and Servicing Agreement, Trust Agreement, etc.), there is no proof that the trust itself actually exists. For the in RE Deamicis case, the trust is a private trust and the documents showing that the trust was formed and constituted are not available through the SEC. So even if they somehow overcome the obstacles in front of them now, they will have to prove the trust itself exists and what it can actually do (capacity).
Speaking of where they apply, in Fannie, Freddie and Ginnie cases this is HUGE. Because they each securitized the loans and do not even identify that a trust actually exists.
In my case I have an assignment of my loan from Mortgage Lenders Network (the originator) to US Bank, NA as Trustee by Residential Funding Company, LLC FKA Residential Funding Corporation Attorney in Fact. How this would relate to the trust my loan was allegedly conveyed to is beyond my understanding. The name of the Trust is RASC Series 2005-EMX4. Residential Funding was the sponsor of the trust. The attorney in fact is (allegedly) Wells Fargo Bank. By failing to identify the trust, this assignment is meaningless.
I have a 2nd assignment done some 5 months later. The assignment this time was from Mortgage Lenders Network to U S Bank NA, as Trustee. This time they completely changed it, but it is still meaningless. Plus they never rescinded the first assignment.
My Substitution of Trustee was done by “Wells Fargo Bank NA, attorney in fact for U S Bank National Association, as Trustee” … Again, a meaningless entry that fails to actual name any entity.
Attached is this case, plus my two assignments and my Substitution of Trustee for reference.
[EDITOR'S NOTE: THE FIRST ASSIGNMENT WAS PROBABLY ROBO-SIGNED. The substitution of trustee, a document often just glanced over, tells a story that will plague the banks and those in the title business for decades unless the truth be known and told, to wit: Edstrom, homeowner, signed a deed of trust to MERS and his original "lender." The substitution is signed by (probably robo-signed, forged in other words) Karen Abernathy as "assistant secretary." (A sure sign of robo-signing is when someone is identified as "assistant secretary" on a document as important as substitution of trustee with the power of sale over hundreds of thousands of dollars in real property.Karen Abernathy is thus said to have signed this document and is said to be an assistant secretary. The question is “assistant secretary to what and to whom?” It doesn’t say. Above her signature is Wells Fargo Bank, NA, but it is not saying it is acting as a bank. It says it is acting as “attorney in fact.” Any title writer will tell you that without the written power of attorney in recordable form, that signature is worthless. It immediately clouds and probably slanders the title of Edstrom.But it doesn’t stop there. Karen Abernathy, assistant secretary to somebody somewhere is signing on the signature line for Wells Fargo who in turn is signing for “U.S. Bank National Association, as Trustee.” The question first is “Who is U.S. Bank, and since they are not appearing as a bank, but instead appearing as “trustee” what is the name of the trust for whom they are signing” (see above case). Is U.S. Bank., Trustee an actual entity? The answer is no it isn’t unless it identifies the Trust, which this document does not.But wait, there’s more. There is nothing in the document that recites the authority of US Bank, Wells Fargo or Karen Abernathy to sign anything in this chain of title since before this time none of them were mentioned anywhere in the chain of title. So what we have here is a document that looks official but says nothing. And that means that ALL ACTIONS FLOWING FROM THE “SUBSTITUTION OF TRUSTEE” ARE VOID, WHETHER IT IS FORECLOSURE, EVICTION, SATISFACTION OF MORTGAGE OR SALE OF PROPERTY TO A THIRD PARTY AFTER A SUPPOSED AUCTION SALE WHICH WAS ALSO NOT REAL.
By the way this judge HAMMERED Ruth in the beginning, basically telling her she was crazy and she could not list the property as part of her estate. She has been fighting all of her cases in pro per and objecting like crazy – and now it has paid off. But she still needs a good lawyer. When Wells Fargo changed their mind as to who the real party in interest was (I think this was a case in Mass. or somewhere on the East coast), they were sanctioned $800,000).Thank you,
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor,Mortgage, securities fraud Tagged: | 362, bankruptcy, borrower, countrywide, Deamicis,disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, Ndex West, quiet title, rescission, RESPA, securitization, TILA audit,trustee, U.S. Bank, US BANK, WEISBAND
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