Questions to Ask About the Trust and the Trustee

Trustee Issues in Foreclosure Litigation: Jurisdiction and Discovery

At the heart of many foreclosure cases lies a simple but critical question: does the trust exist, and if so, does it own the debt?

If the named “trust” does not legally exist, it cannot bring or maintain a foreclosure action. Likewise, if the named trustee is not actively managing trust assets on behalf of identified beneficiaries, then the trustee lacks authority to administer or enforce claims.

In many cases, the so-called beneficiaries have received only a contractual promise of payment from a party purporting to act on behalf of a “trust.” If those beneficiaries expressly disclaim any ownership interest in loans, notes, or mortgages, then they are not true beneficiaries, and the entity in question is not a valid trust. This means the foreclosure is being pursued in the name of a non-existent entity.

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Jurisdictional Questions

Two jurisdictional issues commonly arise:

1. Existence of the Trust

   • Has the trust been organized under the laws of any jurisdiction?

   • Is it authorized to conduct business or appear in the courts of the state?

2. Ownership of the Debt

   • Did the trust actually purchase the homeowner’s indebtedness?

   • Was value paid by the trustee on behalf of the trust for the loan?

If the record lacks evidence of either, a foreclosure claim should fail.

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Discovery Strategy

When discovery requests go unanswered or are evasively addressed, the correct approach is:

• File a motion to compel, rather than amending discovery (which may reset timelines).

• If denied, consider interlocutory appeal on the question of whether the trust’s existence and ownership must be established.

• The only real “prejudice” in requiring such proof is that the party cannot foreclose in the trust’s name if the trust does not exist.

In practice, two realities often emerge:

1. The alleged trust never legally existed.

2. The alleged trust never purchased or owned the loan.

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Depositions: Key Questions for the Trustee

Noticing the named trustee for a deposition duces tecum can be highly effective, though it requires skillful questioning. Sample lines of inquiry include:

• Identity and authority:

  • What is your name and position?

  • Who do you work for, and in what capacity?

  • What is your relationship to the alleged trust?

• Trust existence and structure:

  • Under what jurisdiction was the trust organized?

  • What instrument created the trust? Provide date and title.

  • Who is the settlor or trustor? Who are the beneficiaries?

  • Who is the trust officer responsible for this trust?

• Assets and transactions:

  • Describe the current assets of the trust.

  • On what date did the trustee purchase this loan, and from whom?

  • Was value paid, and through which account?

  • What due diligence was performed to confirm ownership of the debt?

• Trustee practices:

  • What guidelines or internal memos govern the trustee’s role in securitization trusts?

  • Which departments within the trustee bank handle this alleged trust’s matters?

  • When was the last financial report prepared, and what did it show?

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Objections at Deposition

Opposing counsel may object on grounds of relevance. But at deposition, relevance is not a valid basis to block inquiry. Depositions are designed to allow wide latitude, including questions that may lead to admissible evidence at trial. Insisting on answers to foundational questions can expose whether the claimant truly has standing—or whether the trust is nothing more than a name on paper.

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✅ Key Takeaway:
Effective foreclosure defense requires forcing clarity on the trust’s existence and its ownership of the debt. By using targeted discovery and depositions, homeowners can often demonstrate the absence of real transactions that foreclosure mills rely upon as presumptions.

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Tags: DEUTSCHE BANK, in personam jursdiction, REMIC Trust Existence, subject matter jursdicition, TRUTH, US BANK
Posted in evidence, legal standing |