Foundation Objections and Notices to Produce at Trial
Neil Garfield
Jun 30
The assertion, allegation, or argument that the case even involves a trust or trustee requires a legal foundation. The legal foundation consists of a witness who is competent to testify about the jurisdiction in which the alleged trust was organized and is currently existing — or who can testify competently and credibly about the authenticity of the document that created the trust.
That document is a “Trust Agreement” although it could theoretically go by some other name. That is not likely because most lawyers who draft documents do so in the hope and belief that the document will be accepted, end to end, as what it purports to be. Any label other than “Trust Agreement” would diminish the authenticity of the document as having recited or memorialized the creation of the trust entity. Naming it anything other than “Trust Agreement” would raise questions rather than answer them.
Suggestion: NOTICE TO PRODUCE AT TRIAL.
1. With respect to assertions, allegations or arguments presented in the case at bar relating to the existence of an unpaid loan account in which the underlying obligation is owned by a trust entity or any agent of a trust entity including but not limited to any named trustee, please produce at trial any and all documents comprising a trust agreement, amendments and restatements thereof, or relied upon as evidence of a trust agreement, including but not limited to the following elements of all legally existing trust entities:
a. Identification of the Trust —, i.e., name of the trust and identification of the jurisdiction under which the alleged trust was organized or created.
b. Identification of trustor or settlor
c. description or identification of the property subject to the terms of the alleged trust — e.g., loans owned by the trust for the benefit of the beneficiaries
d. description of the terms of administration of the trust for the beneficiaries
e. identification of the beneficial interest
f. identification of the beneficiaries
It is really simple. If the above elements are not present, it is not a trust entity. If there is no trust entity, there is no trustee. If there is no trustee, then the bank named as trustee cannot claim the authority to manage the property that either was conveyed into the trust or will be.
BUT — if you start admitting things that you know nothing about simply because you think the facts are true, then you waive all arguments against the nonexistent trust entity for purposes of the foreclosure. You can still come back against the “trustee” and maybe the “servicer” for having faked the whole thing, but that would be in a subsequent motion or lawsuit for fraud upon the court and abuse of process.
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Thur: 10am - 5pm
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