"Legal Impossibility": REMIC Trust does not own the loan, the debt, the note or the mortgage

For further information please call 954-495-9867 or 520-405-1688

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see Glaski_Affidavit-Thomas-Adams_5-15

Hat tip to Dan Edstrom, Senior Forensic analyst for livinglies.

Thomas Adams, whose name sounds like one of the founding fathers, has submitted an affidavit as an expert witness in the Glaski case in California. He is completely qualified as an expert in securitization practices and documentation. He was one of the lawyers who worked on the first pooling and servicing agreements back in 1989. For those who have given up trying to convince a judge that the securitization aspect of their case is relevant, this affidavit should help.

He concludes that the Trust did not ever come to own the subject loan, and further (like the case Patrick Giunta and I won in January in Florida) he found that nobody in the chain ever owned the loan. He is right of course, but he boils it down into words that virtually anyone can understand — probably on first reading.

The opinion relates to a WAMU Pass Through REMIC Trust. And it involves Bank of America, Chase, LaSalle Bank, and California Reconveyance. He says that the Trust could not possibly own the loan because it is invalid according to the terms of the Trust itself. In a word he is saying that the alleged Transfer is void because

1.  The period of operation for the REMIC Trust was limited to 90 days. It was only during that period that the loan could have been purchased by the Trust. The alleged transfer took place 4 years after the operations of the REMIC Trust closed. Delaware law says the same thing as New York law: any act in contravention to the terms of the Trust are void. The PSA says the same thing.

2.  The subject loan was already declared to be in default at the time of the Transfer. Hence the loan was not a “qualified” loan under the terms of the PSA. {It also means that none of the presumptions under the UCC apply as to possession, holder or endorsement of the note}.

One of the interesting things that carried the day for the homeowners in the cases we have won and which might carry the day in the Glaski case is that if the Trust never purchased nor acquired the loan, then even the servicer who was named in the PSA has no claim to being the servicer unless they have another instrument from the true creditor to service the loan, which they don’t. If they did, they would be required to disclose the identities of the investors on each loan, which would give each borrower an opportunity to contact those investors.

The Banks have successfully pulled the wool over the eyes of thousands of Judges by piling up false paperwork, including “powers of Attorney” {why would you need that if the servicing rights were really transferred? If the servicing rights were truly transferred, then there would have been a purchase and sale agreement and an assignment of the servicing rights, not a power of attorney}.

Once the investors and borrowers start to compare notes, it becomes easily apparent that the original loan documentation was often completely false and withheld multiple material disclosures. As we have already seen in lawsuits by investors against servicers, the servicers are the real parties in interest in foreclosures, since it completes the theft that started when investors first gave their money to the investment bank who was selling mortgage backed securities issued by a REMIC Trust that was destined to be cheated out of the proceeds of sale of those MBS securities.

The Truth of the matter is that the investor money was never used to fund the Trusts who acquired the loans. The truth is that investor money was used in most cases to directly fund the origination of the loan, contrary to the trust (which was ignored by all parties). And the truth of the matter is that the investors have no privity with the borrowers, and are not protected by note or mortgage or their interest in an empty unfunded trust. Nobody has the right to use or enforce most of the notes and mortgages out there. But SOMEBODY has a right to demand money from the borrowers: it is the investors who have a claim based upon unjust enrichment.

So the bottom line is that there either is no loan contract or there is a loan contract. If there is a loan contract, which I say in most cases is not true, then it can be rescinded. If there is no loan contract, there is nothing to rescind. But since there is no loan contract there is nothing to enforce — by the Trust, the servicer, the subservicer, the successors, endorsees, or attorneys in fact. And if there is no loan contract then the documents evidencing the loan contract are worthless pieces of paper upon which no actually transaction exists — no matter how many times they refer to it in increasingly false and fraudulent documentation.

Tags: ownership of loans, ownership of mortgages, ownership of notes, REMIC trusts
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