Bank Games: "Attorney in Fact"

The very idea of two huge Bank competitors naming each other as attorney in fact defies common sense — if they were dealing with anything real.

The use of “attorney in fact” is merely a ruse in order to bridge gaps in the facial validity of documents being used in foreclosure. It also is used to create the illusion that the grantor owned the asset over which the power of attorney was granted. In plain language it is simply a paper trail to cover up the fact that there is no money trail. People often forget that these cases are supposed to be about money.

And don’t forget that the entire purpose of using the names of large banks is to give a judge the impression that certain large banks are involved in the loan when in fact they are not.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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I recently received an email in which Deutsch was supposedly an attorney in fact for Chase and in which investigation revealed that Credit Suisse was in fact the person behind the curtain who was making gargantuan amounts of money off of derivative instruments based upon loans.

Typically the banks don’t actually execute the powers of attorney. The execution of the powers of attorney are by a robo signer who works for a servicer (or third party vendor) who poses as an attorney in fact for the bank named as attorney in fact for someone else, usually another bank. It’s what gives an false institutional flavor to the paper trail. The bank’s tolerate the use of their names on such instruments because they don’t actually own the assets and therefore they have no risk — unless somebody sues them for being a co-conspirator in a fraudulent scheme.

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In discovery — the goal is to show that Deutsch did not have any administrative duties or authority over the active affairs of an existing trust that in fact owned your loan.

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So it is a two-step process. First you eliminate all attributes of a “trustee” you argue that although it held the title of trustee it was not a trustee under the law and therefore had no right, title or interest in your loan. then you can ask for the actual Financial Arrangements between Deutsch and Credit Suisse (or whoever Credit Suisse was acting through)and you can ask why Deutsch was getting paid at all and what services do each provided in exchange for the payments.

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But I don’t want to lead you down the rabbit hole. I don’t think you need to prove all that. All you need to prove is that neither Deutsch nor the supposed trust has any evidence of any transaction in which they acquired the debt by payment of value. If you are able to do that, you can then argue that since they did not own the debt, the attempt to foreclose cannot be an attempt to gain restitution for an unpaid debt.

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If they argue that through securitization they are representing parties who paid value for the debt, you would have two responses.

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The first is that Article 9 § 203 of the Uniform Commercial Code as adopted by state statutes does not permit a party to appear in a representative capacity for unknown owners of the debt. The second is that it is not enough for them to say that’s what they’re doing, they have to prove it. So you might ask in Discovery if they are appearing on behalf of an owner of the debt who paid value for it, and then ask for the identity of the owner of the debt and the details of any transaction in which the owner of the debt paid value for the debt.

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The failure to prove the identity of the actual parties who paid value for the debt combined with the failure to prove representative authority to act on behalf of identified owners of the debt who paid value for the debt, can be argued as grounds for involuntary dismissal or judgment for the homeowner.

Tags: Attorney in fact, Chase, Credit Suisse, DEUTSCHE BANK, Power of Attorney
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