Does the REMIC Trust Exist or Not?

One common thread in the emails I receive is the complaint that the borrower’s lawyer failed to agree or find that the the debt, note  or mortgage was owned by a trust. The reason for that is that in order for “the trust” to be the owner of the debt, it must exist.

In most cases, if you look carefully you will see that even in nonjudicial foreclosures and always in judicial foreclosures there actually is no assertion that a trust exists, or that the certificate holders have an interest in the subject debt, or that the “trustee” owns the debt on its own behalf or on behalf of anyone else. Instead, everyone seems to assume that the assertion was made. But I have found no instance in which the assertions were actually made. The result is that homeowners are fighting a ghost.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
==========================

So I answered a recent inquiry as follows:

I don’t think the trust does exist. A ream of paper was scanned and then the digital file was uploaded. The SEC is not a registry where legal entities are created. The SEC does not review or approve or even disapprove of documents that are uploaded. Uploading documents does not require an oath that the documents mean anything or are true.

I think what the judge is telling you is that if you want to do something, in his opinion, you should file necessary papers to remove the DOT from your chain of title. You check with  local counsel but this probably means filing and recording an affidavit that disclaims the DOT and filing a lis pendens with a lawsuit that seeks to cancel the DOT of record.

*

In order to cancel an instrument you need to show more than that some party can’t enforce it. You have to show that nobody can enforce it. Check with local counsel on this but I am pretty sure I am right. There are only two possibilities:

*

(a) the instrument shouldn’t have been recorded in the first place which means it should never have been executed or delivered. This can be shown if the document lacks signatures or if it fails to name the parties. It is my position that any document that fails to name a party who in fact fulfills the statutory requirements to be a beneficiary under a deed of trust is a document that was never completed or which contains a fatal error. However, the naming of a party as a beneficiary on a recorded instruments raises certain presumptions. That means you need to challenge the presumption even if the beneficiary is named “Donald Duck.” So your affidavit and your action should state a factual basis for disclaiming the named beneficiary as qualifying to be a beneficiary (i.e., the owner of the debt). I think the factual basis would be that the named beneficiary never loaned any money to you and was not acting as the authorized representative of anyone who did loan money to you. My analysis indicates that both Donald Duck and the REMIC Trust are fictional characters.

*

(b) the instrument is now void  by operation of law. For example if a notice of rescission was sent. Beware that courts are twisting themselves into pretzels to avoid treating the rescission under TILA as an event and rather treating it as a claim. This judicial pattern of conduct is against the wording of the statute 15 USC §1635 and the wording of SCOTUS opinion in Jesinoski.

*

With Ocwen, New Century, and Deutsch involved there is little doubt in my mind that at a minimum the DOT is not enforceable by them. That might call for a lawsuit seeking declaratory, injunctive and supplemental relief.

*

If you need help in drafting we can help with that.

Posted in Uncategorized |