Semantics: What a difference a word makes — Creditor — Trustee

Using the voluminous amount of feedback to Livinglies.wordpress.com, some observations about the words you use in litigation and in your correspondence, QWR and DVL might well be of some assistance.

1. CREDITOR: It seems that using the word creditor has much more power than lender, pretender lender or even holder in due course. I’ve been told that the word “creditor” conveys a relationship of business vs. consumer that is a lot closer to the truth than “lender” which implies that the party who initiated the foreclosure was a bank and that the homeowner is trying to get out of a legitimate debt. A creditor is one who has advanced money, goods or services with the intention of getting it back through the payment of money, the delivery of services or goods or the return of what was extended by the creditor. The simple statement is that the Plaintiff (in judicial states) or party initiating foreclosure proceedings is NOT the creditor and that the obligation you signed for calls for you to pay money to the creditor, not the opposing party in your foreclosure. The party you are up against has advanced no funds, goods or services. Thus they are not the creditor. Ask them in open court if you need to do so. Yet they want the court to pretend that they are a creditor anyway — or phrased another way, they want to assert that they have the right to collect on the obligation and foreclose on the home even though they are NOT the creditor. If their position is that they are foreclosing on behalf of the creditor, your answer would be that they must then disclose the creditor and name them as nominal plaintiffs, and show how they, as non-creditors, have the right to sue on behalf of the creditor. You must be given the chance to inquire in discovery whether this revelation is in fact the creditor and if so, you must be given a chance under Federal Law to attempt modification or mediation with the real decision-maker — i.e., the creditor. BEWARE: Attorney representations in or out of court are not evidence and should be objected to, pointing out that such representations raise an issue of fact that you deny and therefore you have a right to at least inquire through discovery the truth or falsehood of those representations.
2. SPV MBS POOL: There are at least two pools of assets in every securitization scheme involving home mortgages — the aggregator’s pool which is made up of multiple assets usually all home mortgages, and the SPV or MBS Pool which receives an assignment from the aggregator. Don’t use the word “TRUST” to describe the second pool (the one that goes into the pool of assets that is then fractionally sold to buyers of certificates in which the ownership is conveyed in fractional interests and the promise to pay comes from the SPV in the form of a note or bond). Since the SPV or MBS pool is part of a REMIC transaction, it may be fairly assumed and argued that the equitable and legal owners of the assets in the pool are actually the certificate holders. In addition, the holders of a certificate are not described as beneficiaries, which would be the words associated with a trust. Since the SPV pool is a REMIC (Real Estate Mortgage Investment Conduit)under the Internal Revenue Code the reference to the existence of a trust is a reference in name only. In fact, there is no trust and there are no beneficiaries. The owners of the pool are quite clearly the certificate holders of mortgage backed securities (MBS). The pool is owned by those owners of the certificates not by some non-existent trust.
3. AGENT With Limited Power of Attorney: Examination of the enabling documents in their totality clearly shows that the party named as “Trustee” is not a trustee and has no trustee powers. This was done intentionally by the investment banks so that they could avoid the implication of a fiduciary duty of a Trustee, which would have included telling the investors the truth about the crap they were buying. So you might want to say that (a) there is no trust, there is just a pool owned by investors. (b) You might want to say the Conduit status of the SPV (Special Purpose Vehicle) mandates that no actual transactions are occurring in the name of the REMIC (SPV) or else it loses its “tax-exempt” status, something that would be contrary to the interests of the investors. (c) you might want to say that therefore there is nothing in any trust, so even if it DID exist, it has no assets. And (d) you might want to say that the party designated as “TRUSTEE is in reality merely an agent for the certificate holders and that the indentures or enabling documents simply appoint the Agent to act with limited power of attorney under certain circumstances. Remember that neither the “TRUSTEE” nor the “TRUST” ever physically receives the notes, mortgages or assignment or any other pieces of paper except for the mortgage backed security. The paper is held elsewhere, which is where the investment banks actually had the opportunity to trade and bet on those securities, since they were the ones (directly or indirectly) who always controlled the possession and distribution of the actual notes, mortgages, assignments or other paper documents.

More to come

Tags: agent, conduit, consumer, creditor, holder in due course, lender, MBS, pool, Power of Attorney, pretender lender, REMIC, SPV, trust, trustee
Posted in bubble, Corruption, Eviction, securities fraud |