Delaware Federal District Court Challenges the Ghost Nature of REMIC Trusts and BY Implication the Role of Trustees

by Neil Garfield

  1. This is subject to rehearing, reconsideration and appeal. But in Delaware where the financial industry is coddled to the point of absurdity (statutory trusts are not trusts), this ruling is highly significant. Allow me to say “I told you so.”

Here is the decision: REMIC Trust MTD-AC-decision-2021.12.13

Here is an article about the decision written by Ori Lev on December 16, 2021. Ori Lev is an attorney who works for and writes for the law firm of Mayer Brown. which represents the largest players in the financial industry. The article is sent out as a warning to all investment banks doing business under the name of some name claimed to be a REMIC trust.

CFPB Wins Reversal of Dismissal – And Key Ruling on Securitization Trusts

Key quotes from the article are as follows:

    • the district court ruled that, at least at the motion to dismiss stage, the CFPB had properly asserted claims against the Trusts. It is this aspect of the court’s ruling that may have broad ramifications for securitization trusts. Various Trust parties that moved to dismiss the case had argued that the CFPB could not properly assert claims against pass-through securitization trusts because such trusts are not “covered persons” under the CFPB’s authorizing statute. That statute provides that the CFPB can only seek to enforce prohibitions against unfair, deceptive and abusive acts and practices against “covered persons,” a term defined as anyone who “engages in offering or providing a consumer financial product or service” (emphasis added).
    • The Trust parties argued that as pass-through entities with no employees the Trusts could not “engage” in providing a consumer financial product or service and the only proper defendants are the entities that do so directly (in this case, the servicers and sub-servicers). [Editor’s note: As with all schemes based upon plausible deniability, lawsuits against U.S. Bank, Deutsch Bank National Trust Company, Bank of New York Mellon, various Willmington entities and others have completely failed because the “trust” (frequently nonexistent and always empty), acting through lawyers who claimed to be representing the trustee basically convinced every judge that the trust could not possibly have done anything wrong because all duties and obligations of the trust and the trustee were delegated to companies that were claimed to be “servicers” and “subservicers.” Consumers, homeowners, attorneys, judges and regulators all got confused by this labyrinth, but this case takes a large piece out of that argument.]
    • Relying on dictionary definitions of the term “engage,” the district court held that by contracting with others to service and collect student loans, which the court described as “core aspects of the Trusts’ business model,” the Trusts had “engaged” in those acts and were thus covered persons. Whether this holding withstands the scrutiny of further litigation, and whether other courts adopt its reasoning, will have important implications for both the CFPB and for the securitization industry more generally.

Significant quotes from the case decision:

  • Since the Trusts have no employees, they collect debt and service the loans through third parties. First Am. Compl. ¶ 29.
  • in 2009 the Trusts contracted with a special servicer to collect “pastdue and defaulted student loans” and to do “collections litigation.” D.I. 54, at 5. The special servicer, in turn, entered into agreements with “subservicers,” who would “conduct[] collections” and “oversee[] various law firms that [would] file collection lawsuits against borrowers in the name of the Trusts.” Id.; see First Am. Compl. ¶¶ 38–44.
  • But the subservicers soon attracted the attention of the CFPB. After a lengthy investigation, it found that the subservicers had “executed and notarized deceptive affidavits” and “filed … collections lawsuits lacking” key evidence. First Am. Compl. ¶¶ 49–50. The CFPB concluded that they engaged in unfair and deceptive debt-collection practices. D.I. 54, at 1–2. (e.s.)
  • The Trusts do not deny that their subservicers collected debt or serviced loans. Instead, they contend that the CFPB cannot hold them liable for those actions. D.I. 367, at 13. The Trusts characterize themselves as “passive securitization vehicles … [that] take no action related to the servicing of student loans or collecting debt.” Id. at 12.
  • the CFPB alleges that the unfair and deceptive debt-collection practices happened in lawsuits brought on behalf of the Trusts, with the “relevant Trust … named [as the] plaintiff in the action.” First Am. Compl. ¶ 37. Those suits could have proceeded only with the Trusts’ involvement: with narrow exceptions, “a party … must assert his own legal rights and interests.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (internal quotation marks omitted). The subservicers could not have collected any debt without the Trusts’ say-so. (e.s.)
  • The Trusts cannot claim that they were not “engaged in” a key part of their business just because they contracted it out. Cf. Barbato v. Greystone All., LLC, 916 F.3d 260, 266−68 (3d Cir. 2019) (finding that a “passive debt owner” counted as a “debt collector” under the Fair Debt Collection Practices Act when it contracted with a third party to collect debt on its behalf).
  • if Congress wanted to allow enforcement against only those who directly engage in offering or providing consumer financial services, it could have said so. See, e.g., 12 U.S.C. § 5481(15)(A)(vii)(I) (exempting some merchants from “covered person” status where they deal in “nonfinancial good[s] or service[s] sold directly … to the consumer”).
  • because the Trusts themselves count as covered persons, I need not decide whether a non-covered-person principal can ever be held vicariously liable for the acts of his covered-person agent. (e.s.)

Bottom Line: This case is NOT an authoritative precedent that is binding on other judges even within the same district. But it is very persuasive authority supporting lawsuits that name the “trust”, the “trustee” and quite probably the investment bank that used the name of the trust to do business and borrow money from investors under the guise of selling them “mortgage-backed securities.”

In plain language, this opens the door to suing the trustees and the trusts in addition to the companies that are claimed to be servicers and sub-servicers.

I would add that either vicarious liability or liability established through piercing the veil of the empty REMIC trust could now be attached to the investment banks that initiated each securitization scheme and especially all those who participated in the foreclosure game in which a remedy is sought for a trust that will never see the remedy (foreclosure) applied to any entity bearing the name of the trust, the trustee or any investor. If I am right, this decision could be the start of the end of securitization as now practiced.

Just ask them — U.S. Bank, Deutsch Bank National Trust Company, Bank of New York Mellon, various Willmington entities — have you ever been paid one cent from the sale of a foreclosed home on behalf of a REMIC Trust?

Mortgage Fraud Daily News Update ⋅ December 29, 2021

 

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FRAUD STOPPERS Daily News Update ⋅ December 29, 2021

 

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Who Owns Your Mortgage Note?

Have you ever asked who owns your mortgage note? A better question to ask is, “If I paid off my mortgage loan tomorrow, would I get clear and equitable title to my real property?” If your mortgage loan contract was converted into a mortgage backed security and sold to an investment trust on Wall Street you might not!

If you are thinking of applying for a loan modification, or refinancing through the Home Affordable Refinance Program (HARP), Home Affordable Modification Program (HAMP), or other program(s) under the Making Home Affordable (MHA) initiative there are a few things to consider.

First, remember that the entity who claims to own your mortgage loan is not automatically the same entity that may be servicing your mortgage loan. A loan servicer is a debt collections company that sends you mortgage statements, takes your payments each month, and if you have an escrow account, pays your homeowner’s insurance and property tax bills. But who really owns your mortgage loan?

If you want to find out here are a few things you can do:

  • Ask the servicer. Your loan servicer is legally obligated to tell you the name, address, and telephone number of the owner of your loan as shown in their records. It’s a good idea to ask them in writing officially with a “Qualified Written Request” via certified mail while keeping a log of your communications. The name of your servicer should be on your mortgage statement, but you can also use the MERS link below.
  • Original lender. Your loan may have never been sold, and still kept as a “portfolio loan” with the original lender. That’s the way loans used to be done!
  • Fannie Mae. In reality, many loans are sold to FNMA aka “Fannie Mae”. See Fannie Mae loan lookup tool.
  • Freddie Mac. Similar story with Federal Home Loan Mortgage Corporation (FHLMC) aka “Freddie Mac”. See Freddie Mac loan lookup tool.
  • Mortgage Electronic Registration Systems, Inc. (MERS) is a big online registry designed to replace the costly process of publicly recording mortgage ownership at the local government level with a private electronic version that allows the swapping of mortgages with no friction at all. MERS tracks both the servicing rights and ownership of mortgage loans in the United States, although the accuracy has been called into question. See MERS ServiceID lookup tool. You can also call them at 888-679-6377 FREE.
  • Search the Securities and Exchange Commission (SEC) for the alleged trust that claims they are the owner of your mortgage loan: https://www.fraudstoppers.org/how-to-search-the-sec-for-a-securitized-trust
  • Register for a Free Mortgage Fraud Analysis and Securitization Search. Complete our Mortgage Fraud Analysis form and we will conduct a free securitization check to see if your mortgage loan contract was converted into a mortgage backed security and who really owns your note. If your loan was securitized than you may have legal standing to sue your lender, or current loan servicer, for mortgage fraud and quiet title. Find out more by completing our Mortgage Fraud Analysis form or call us at 773-877-3655 and we will help you get the facts and evidence you need to get the legal remedy you deserve.

Cases like the Glaski v. Bank of America and Jesinoski v. Countrywide Home Loans may have provided hope for homeowners who were victims of mortgage and foreclosure fraud. But they did not strike at the heart of the real problem behind the securitization of millions of mortgage loans.

The Glaski decision states that if some entity wants to collect on a debt they must first legally own that debt. Furthermore, if that entity is claiming ownership by way of an Assignment, it must prove that Assignment is legally valid.

The Jesinoski case addressed a borrower’s right to rescind, or cancel, their mortgage loan contract under the Truth in Lending Act (TILA) by only providing written notice to the lender, without filing suit. A loan is rescinded at the time the rescission letter is mailed. If the lender wants to refute or fight the rescission they must file an action to do so, and they have limited time to do so.

If your mortgage was securitized (the practice of pooling mortgages and selling their related cash flows to third party investors as securities) then it was part of a table funded transaction. In a table funded transaction the borrower named on the note is NOT in debt to the lender (“Pretender Lender”) because they signed the note in the capacity of an Accommodation Party, or co-signer for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument!

The broker, or originator, of the loan is pretending to loan money to the alleged “Borrower“, but in reality they trick the alleged “Borrower” into co-signing on a note that is pledged as collateral on a warehouse line of credit with the funding bank.

It is illegal for banks to loan credit, they can only loan money!

But if the Pretender Lender is not the entity putting up the funds, then there is no underlining indebtedness between the alleged “Borrower” and the originator who is named on the note. And if there is no underlining indebtedness between the parties named on the note, then the mortgage (or deed of trust) vaporizes into nothingness, and is legally unenforceable as a matter of law.

If your mortgage loan contract was part of a table funded transaction and converted into a mortgage backed security that was sold to an investment vehicle, or trust, on Wall Street, then you may have legal standing to rescind your mortgage loan contract, and sue your “Pretender Lender” for Special Damages equal to triple the original amount of your note, plus clear and equitable title to your home!

Fraud Stoppers is part of a National Private Members Association that provides back office litigation support to law firms, foreclosure defense advocacy groups, and pro se litigants nationwide. Our Private Members Association can help you sue your lender for mortgage fraud, with or without an attorney.

Then after our free mortgage fraud analysis is done, we can scheduled a free potential cause of action consultation to discuss your loan and lawsuit in detail and help you get started filing your state and federal lawsuit for the remedy that the law entitles you to, and that you deserve!

You can save 60% to 70% in legal fees when you get your lawsuit started yourself, Pro Se, (without an attorney), and then bring in a local attorney to help you at trial, where you need them the most! This way you can get the best of both worlds: Save money in legal fees, and get the professional help you need at the same time!

FRAUD STOPPERS Private Members Association (PMA) has a PROVEN WAY to help you save time and money, and increase your odds of success, suing the banks for mortgage and foreclosure fraud.

Our primary focus is helping you get clear and marketable title to your property by arguing that the actions of the banks have made the security provisions of the mortgage/deed of trust unenforceable as a matter of law.

For information on foreclosure defense call us at 800-459-1215. We offer litigation support, admissible evidence, expert witness testimony, education, training, and support in all 50 states to attorneys and pro se homeowners.

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