Look at the Name of the Foreclosure Plaintiff or Beneficiary: Challenge the Deficiencies Early in Litigation.

Feb 16, 2021

A simple fact that eludes most pro se litigants is that they are litigating with a ghost. They have no obligation to defend the claim of a ghost except to challenge the foreclosure mill to at least allege or produce an exhibit that establishes the Plaintiff or beneficiary as a real legal entity that owns an existing debt from the homeowner and has authority to administer, collect and enforce that obligation (the three elements).

A look at the name being presented usually identifies essential deficiencies in the foreclosure case. Failure to challenge them will usuually be treated as waiver or even law of the case which means that complete fiction will be accepted as legal fact in court. That is not bias. It is the rules of court.

If you were doing business with John Smith and John Smith was named as Plaintiff in a lawsuit against you, generally it would be pretty stupid to challenge John Smith as a proper Claimant. But if you had done a transaction with John Smith and then Mary Jones, a stranger, sued you, it would be prudent to ask “Who is Mary Jones?” Yet in foreclosure cases, homeowners and their lawyers routinely fail to challenge “Mary” and in so doing they are reinforcing the anchor that began when the lawsuit was filed.

Another question is “Does Mary Jones exist?” This also would be a stupid question if Mary was alleged to be a resident of the county, over the age of 18, and otherwise “sui juris” (a legal person). Legal persons can be human beings or fictional legal entities. Such legal fiction must conform to specific laws and rules in order to be considered a legal person. So if the entity that was named as Plaintiff or claimant was Mary Jones, Inc., that would be a different entity than Mary Jones, a human being.

The “inc.” means it was incorporated. That is something that can only be done if human beings filed documents with a state or national agency that was empowered by statute to allow the corporation to claim to exist and register it with the secretary of state.

If the entity has not performed all the things required by the agency to recognize its existence, it does not legally exist regardless of how many times it is named in contracts, lawsuits or anything else. Such contracts and lawsuits are legally void because there is no counterparty or Plaintiff. The court has no jurisdiction over a lawsuit that fails to name a Plaintiff. No jurisdiction means no authority. Any court that continues to treat the lawsuit as real is committing an ultra vires act — an act beyond its authority granted by the Constitution and statutes of the State or the U.S.

Some fictional legal persons can be recognized by statutory authority (i.e., a statute passed by the legislature) without registering with the Secretary of that State. Some types of trusts and partnerships fall into that category. This is the level that is used by stockbrokers masquerading as “investment banks”. They have invented the term “Special Purpose Vehicle” (SPV) and used it as a label when marketing to investors. but they don’t use that phrase when initiating foreclosure against homeowners.

The typical SPV is described as a common-law trust, usually qualifying to be treated as a legal person under the laws of the State of New York. Sometimes they are also registered in the State of Delaware. So in a technical sense, they come into legal existence as a fictional legal person when the pen is put to paper. But that paper must describe the trustor (or “settlor’), the beneficiaries, the terms of the trust, the identity of the trustee, and the way in which the trustee, as fiduciary for the beneficiaries, must handle the affairs of the trust.

But the trust does not legally exist in any state, regardless of registration, unless the settlor or trustor conveys money or property to the trustee subject to the terms of the trust agreement. There is always a trust agreement because, without that, there is no trust to be discussed pursuant to the laws of every state. There is always money or property entrusted to the trustee because without that there is either no legal trust entity or if the matter being litigated in court has not been entrusted to the trustee, the existence of the trust is completely irrelevant.

Anyone who has done a family trust has been told by their lawyer that for the process to be complete, the financial account or property must be transferred from, for example, Thomas Gates, trustor to Thomas Gates, Trustee of the Thomas Gates Trust, a Florida Trust. The investment banks do not conform to this requirement, custom and practice because they don’t have a trustor, and therefore they have no “res” (thing) in the trust over which the named trustee has any legal power to administer, collect or enforce.

But your failure to challenge the implied assertions that there is a trustor will, for purposes of the case, make U.S. Bank (or whoever) a trustee which implies the existence of a trust, a trustor, and a thing being owned by the trust having been conveyed by a trustor. When that happens the anchor has dropped and your ship will not sail.

Nobody should care whether a trust exists if it is not alleged to be the owner of the claim. While most foreclosures refer to the possession, ownership of the note, and mortgage, none of the proceedings will involve an allegation of payment for the underlying obligation.

This is important because state laws in every U.S. jurisdiction contain strict rules for the enforcement of notes and even stricter rules for the enforcement of mortgages or deeds of trust. While a note can be transferred without payment of value, consideration, or money, the transfer of a security instrument without the transfer of the underlying obligation is considered a legal nullity in all U.S. jurisdictions. A legal nullity is somewhat the law refuses to recognize as a legal event even though it has references in numerous documents. And all claims derived from the fictitious transfers are equally void.

All of this is important for two basic reasons. First, the Plaintiff is named in the foreclosure lawsuit or as a beneficiary under the deed of trust as, for example, U.S. Bank, as trustee for the Structured Asset Securities Corp. (SASCO) pass-through certificates series 2007-a.” That is not the name of a trust and it doesn’t even name a trust, so the reference to U.S. Bank as trustee contains no plain statement of ultimate facts upon which the court to conclude that the subject loan if it exists, is owned or controlled by U.S. Bank or SASCO.

Sometimes the foreclosure mill lawyers will include the word “trust” in the “name” of the Plaintiff or beneficiary. But they will always fail, refuse and avoid telling the court or you the state in which the “trust” was organized — the most basic pleading requirement for any Plaintiff or beneficiary. They will also avoid, evade or ignore all requests to identify the date, parties or terms of any transaction in which anyone ever paid value for the “loan.” That is because there is no such transaction. The entire affair is a ruse.

A common (nearly universal) error by pro se litigants and many attorneys is a failure to simply look at the name of the party on whose behalf the foreclosure lawsuit was filed or on whose behalf the notice of substitution of trustee is filed.

In most cases, there are quite solid grounds upon which a motion to dismiss or motion for a more definite statement could be filed (and granted) demanding that the Plaintiff be identified as a trust and then described in the allegations of the judicial complaint as having been organized in some legal jurisdiction and operating in some legal jurisdiction.

Such allegations should at least imply that value was paid for the obligation and that the currently named Plaintiff or beneficiary is the owner of the underlying obligation as required by Article 9 §203 of the Uniform Commercial Code, adopted verbatim in all U.S. jurisdictions.

A court challenge against the former trustee and supposed new trustee seeking to cancel a notice of substitution of a trustee in a nonjudicial state is likely to produce a favorable result if the practitioner knows how to litigate. But in all events, this presents one of the earliest times to anchor the defense narrative that attacks the three elements: the existence of the obligation, ownership, and authority. And of course, it deflects the early attempts by the foreclosure mill to anchor the implied validity of the claim and parties being presented.

Practice Note: Don’t get caught up in the argument about whether there was never any debt. Although that is theoretically a fruitful discussion, it is largely regarded as irrelevant to whether the current claimant has any right to enforce a present obligation.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

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