What to ask for when the window is open for Legal Discovery Demands (i.e., when you in litigation)

I was researching something when I ran across a recent filing from a Citigroup document that is called a Pooling and Servicing Agreement. Anyone who reads these pages knows that they’re not pooling loans. They are pooling the receipt of payments — regardless of whether the collection was legal or illegal — and the parties executing the agreement are only figureheads.

I have had several cases in which the homeowner won because the lawyer for the foreclosure mill relied upon a document entitled “Pooling and Servicing Agreement.” Besides the fact that everything in there is an agreement relating to future events and does not represent a conveyance or memorialization of any past transaction, it is usually true that the copy presented to the court lacks many details.

Specifically, the PSA usually lacks a mortgage loan schedule that is certified or authenticated by the records custodian of any company that was a party to the supposed PSA agreement. And we have determined that this is because the MLS does not yet exist. (See above — all provisions relate to future events).

So the PSA cannot be used as evidence or proof that the alleged REMIC trust owns anything or that anyone else in the agreement does either. In fact, there is no warranty of title or any “Whereas” clause that U.S. Bank, N.A., for example, has been entrusted with the loans shown on the MLS by the present owner or Seller who owns the underlying obligation and not just some future claim deriving its value solely from apparent (facial) ownership of a note or mortgage. No such representation appears because no such creditor or owner exists.

So if you ask for the MLS that was valid when PSA was executed, you won’t get any answer from a person with personal knowledge or authority to say that. This undermines the entire foundation of the foreclosure claim.

But it also occurred to me that the typical PSA always references forms for affidavits etc. So my interim suggestion, besides the other suggestions I have written about on this blog, is that you might ask to see those forms — but only after the attorney for the foreclosure mill references it as the basis of authority for the alleged “servicer,” “REMIC trust,” or REMIC Trustee. Here is a list taken straight out of the Citigroup form I uncovered:

Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class A-AB Certificate
Exhibit A-6 Form of Class X-A Certificate
Exhibit A-7 Form of Class X-B Certificate
Exhibit A-8 Form of Class A-S Certificate
Exhibit A-9 Form of Class B Certificate
Exhibit A-10 Form of Class EC Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class X-D Certificate
Exhibit A-14 Form of Class E Certificate
Exhibit A-15 Form of Class F Certificate
Exhibit A-16 Form of Class G Certificate
Exhibit A-17 Form of Class R Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Request for Release
Exhibit D Form of Distribution Date Statement
Exhibit E Form of Transfer Certificate for Rule 144A Global Certificate to Temporary Regulation S Global Certificate
Exhibit F Form of Transfer Certificate for Rule 144A Global Certificate to Regulation S Global Certificate
Exhibit G Form of Transfer Certificate for Temporary Regulation S Global Certificate to Rule 144A Global Certificate during Restricted Period
Exhibit H Form of Certification to be given by Certificate Owner of Temporary Regulation S Global Certificate
Exhibit I Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Global Certificate
Exhibit J Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Global Certificate
Exhibit K Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Global Certificate
Exhibit L-1 Form of Affidavit Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4) of the Internal Revenue Code of 1986, as Amended
Exhibit L-2 Form of Transferor Letter
Exhibit L-3 Form of Transferee Letter
Exhibit L-4 Form of Investment Representation Letter
Exhibit M-1A Form of Investor Certification for Obtaining Information and Notices (for persons other than the Controlling Class Representative and/or a Controlling Class Certificateholder)
Exhibit M-1B Form of Investor Certification for Non-Borrower Party (for the Controlling Class Representative and/or a Controlling Class Certificateholder)

A careful reading of these forms will reveal what I have been saying all along. There has never been a certificate that conveyed ownership of an underlying obligation as required by state statutes as a condition precedent to the conveyance being a legal event. Without the underlying obligation, the paper conveyance is a legal nullity — something that most pro se homeowners and seven some lawyers have difficulty grasping.

The bottom line is that if you want to win these cases, you can. And the way to do that is simply to ask for things that must have been present when the foreclosure started. Any first-year law student can tell you what must be true for anyone to claim a right to foreclosure. When the lawyer for the foreclosure mill fails or refuses to properly respond to those requests, the case shifts from being creditor vs debtor to Judge vs Foreclosure Mill. Guess who wins that fight?

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