SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM
TRUST ASSET POOLS ARE EMPTY
EDITOR’S NOTE: Here we have the results of hundreds of hours of analysis corroborating everything we have said on this blog about the so-called transfers of mortgages. In plain language, the claim of the pretender lenders is that the mortgage was legally transferred into an asset backed pool governed by a trust created by the pooling and servicing agreement. But the PSA provides restrictions on such transfers and specific requirements as to the steps for transfer. Both the restrictions and requirements were violated in virtually every loan claimed to be in such a pool. New York Law which governs the ability of the trust or trustee to take action or accept assets states unequivocally that as a matter of law, the transfer never took place unless the requirements of the PSA were met.
As this segment points out the defect is not curable because of the terms of the PSA itself. This is why an analysis of title and securitization is so important in defending fraudulent foreclosures and why I have expressed the opinion that the mortgage is not enforceable by anyone. Because the MONEY was divided up amongst the securitizers as though the loan was transferred. Hence, the obligation stated in the note, even if it were somehow deemed valid, was clearly separated from the mortgage or deed of trust in fact by the actual conduct of the parties in handling the money.
Bottom Line: Most of the foreclosures were and are fraudulent and void or voidable.
NEW YORK STATE LAW: Section 7-2.4 Act of trustee in contravention of trust
Sec. 7-2.4 Act of trustee in contravention of trust. If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.
RELEVANT PORTIONS FROM CONGRESSIONAL OVERSIGHT PANEL NOVEMBER 16, 2010 REPORT, SUBMITTED UNDER SECTION 125(B)(1) OF TITLE 1 OF THE EMERGENCY ECONOMIC STABILIZATION ACT OF 2008, PUB. L. NO. 110-343, EXAMINING THE CONSEQUENCES OF MORTGAGE IRREGULARITIES FOR FINANCIAL STABILITY AND FORECLOSURE MITIGATION
As described above, in order to convey good title into the trust and provide the trust with both good title to the collateral and the income from the mortgages, each transfer in this process required particular steps.38 Most PSAs are governed by New York law and create trusts governed by New York law.39 New York trust law requires strict compliance with the trust documents; any transaction by the trust that is in contravention of the trust documents is void, meaning that the transfer cannot actually take place as a matter of law.40 Therefore, if the transfer for the notes and mortgages did not comply with the PSA, the transfer would be void, and the assets would not have been transferred to the trust. Moreover, in many cases the assets could not now be transferred to the trust.41 PSAs generally require that the loans transferred to the trust not be in default, which would prevent the transfer of any non-performing loans to the
trust now.42 Furthermore, PSAs frequently have timeliness requirements regarding the transfer in order to ensure that the trusts qualify for favored tax treatment.43
Id. page 19.
38 See Section D.1.a.ii, supra. 39 FBR Foreclosure Mania Conference Call, supra note 3. 40 N.Y. Est. Powers & Trusts Law § 7-2.4; FBR Foreclosure Mania Conference Call, supra note 3. 41 FBR Foreclosure Mania Conference Call, supra note 3. 42 Amended Complaint at Exhibit 5, page 13, Deutsche Bank National Trust Company v. Federal Deposit Insurance Corporation, No. 09-CV-1656 (D.D.C. Sept. 8, 2010) (hereinafter “Deutsche Bank v. Federal Deposit Insurance Corporation”). 43 See FBR Foreclosure Mania Conference Call, supra note 3. 44 See, e.g., FBR Foreclosure Mania Conference Call, supra note 3. 45 Restatement (Third) of Prop. (Mortgages) § 5.4 cmt. B (1997).
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