If they are not a trustee, why do they say they are?

It is often true that BONY, Deutsche, or US Bank et al will refer to themselves as “trustee” in the context of a REMIC trust that actually may not exist.

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They are merely following the party line for which they are being paid. They have agreed to being titled as a trustee so they are only saying that because they were titled as such they are a trustee. It is circular reasoning. But there is a grain of truth to it. The real trust agreement that normally nobody sees says when an instrument of conveyance names them as trustee that contractually they are to hold bare legal title for the benefit of the investment bank. Considering other elements of the law it is doubtful but not assured that the naming of the bank as trustee creates a trust and an asset to be managed by the trust. But if it does then technically — very technically — they would be a trustee.

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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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But that is VERY different from being a trustee for investors, certificate holders or anyone else. And THAT means that the naming of BONY as trustee for certificate holders OR for any trust is bogus. While under the above analysis BONY might be a trustee for the investment bank over the bare legal title to the mortgage, it is not a trustee for the certificates, the certificate holders, or the debt. That means makes it ineligible to assert any claims for payment because BONY clearly never paid for the debt, which means it could not own the debt.

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Further without having paid for the debt, the conveyance to BONY is a legal nullity since a conveyance of a mortgage without the debt is void.

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The problem for litigants is that it is generally held or assumed that the conveyance raises a legal presumption of transfer of the debt, which is why homeowners must rebut that presumption with appropriate and aggressive discovery demands as to any financial transaction in which the debt was the subject of a payment of value in exchange for ownership of the debt.