Matt Weidner – Fighting For The American People

Posts Tagged ‘pooling and Servicing Agreements’

I’ve read thousands of Pooling and Servicing Agreements. Okay, truthfully I’ve read the same one over and over.  That’s right, the same Pooling and Servicing Agreement applies to virtually every securitized loan….it’s just a 384 page word processed document that the banksters just swerve the words around on you.  The content is the same….and it’s all crap.

Even if you do get a hold of the Pooling and Servicing Agreement that governs your loan, the bank will argue that you aren’t a party to it and have no right to understand what’s in it. But the PSA governs what happens to every single mortgage payment you make and what happens to the parties who are invested in your mortgage payments.  It’s especially relevant in foreclosure because the PSA specifies how your loan is supposed to travel from one party to another and defines who can foreclose, among other things…..but who cares right…I mean you haven’t made a payment.

So the next step in all this is the fact that Fannie and Freddie are asking you the taxpayer to give them billions of dollars so they can pay their non-performing executives hundreds of millions of dollars in bonuses. (Apparently you need bonuses to help executives crash the plane into the ground)

Each homeowner’s loan is a part of a larger and more devious financial ponzi scheme.  And every time another company or executive comes to the party more of the homeowner’s loan payments (and the investors investment payment) are diluted.  It’s pure economic cannibalism….the homeowner only makes one mortgage payment, but every step in the daisy chain sucks more and more life from that homeowner’s mortgage payment

The next broken link in the daisy chain is when the investors buy interests in the government backed interests in the loan pools….and that’s where today’s story picks up, these links provide the information that is provided to investors before they swoop in to pick apart the homeowner loan’s flesh.

The words are just mind-numbing and I really wonder whether anyone has ever read any of this stuff.  Knowing the intellectual horsepower and attention spans of the traders and investors that fueled the crash that is the current worldwide economic meltdown, I’m guessing they never got passed the first page. (Maybe they should use cartoons and pictures to describe all the big concepts and words.)

If you’ve got the attention span and the intellectual horsepower, I encourage you to pick a prospectus and read it…..then let me know how you feel afterwords…..

IMPORTANT FANNIE MAE WEBSITE INFORMATION

FANNIE MAE LOAN PROSPECTUS

Forget all the other questions and controversy surrounding fraudclosuregate.  Forget the forged or fraudulent or sloppy assignments.  Forget standing and trusts and pooling and servicing agreements.  Forget possession of the original note.  Forget the “technical” areas of the law and court process.  Let me ask you one question:

SHOULD AMERICANS HAVE THE RIGHT TO BE SECURE IN THEIR HOME FROM UNREASONABLE

SEARCHES AND SEIZURES?

Now just a few short months ago, I thought the answer to that question was, “Duh, Yes Of Course Americans Have The Right To Be Safe In Their Homes From Unreasonable Searches and Seizures”.  If I was feeling really academic I might belt out a little Constitutional Law and sing out…..

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and ht no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION)

But I would be WRONG AGAIN WEIDNER!  You see, Americans do not have the right to be safe and secure in their homes…AMERICANS DO NOT HAVE THE RIGHT TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS….because at any moment, the banks can come and kick down your door.  If they like, they can change your locks.  And if you’ve got papers and valuables lying around, they may just help themselves to them.

And don’t think you can convince law enforcement to protect you….law enforcement will leave you alone.  Helpless. Defenseless.  While the Jack Booted Thugs Come Back Again and Again and Again.  Which is exactly what my client William Coyle claims happened to him:

Bill Coyle is on the verge of losing his home of 17 years to foreclosure, and that’s not the worst part. 

The Lutz man claims between $200-300 hundred thousand dollars worth of automotive parts, tools, and equipment stored in his garage from his defunct Corvair restoration business have been removed from the now-vacant Vandervort Road home by an unidentified company working for his lender.

The catch is while Coyle’s house in foreclosure, the court has not yet ruled on his lender’s (GMAC) request to take possession of the home. “I screamed bloody blue murder but it didn’t do any good,” Coyle tells the I-Team.

ABC ACTION NEWS

There exists in this country today a pervasive form of lawlessness that manifests itself in most foreclosure cases and may be seen in virtually every mortgage contract that exists across the country.  We don’t know exactly how bad things are because the banks are pushing back so hard, suppressing information, filing Motions for Protective Orders.  Our elected and appointed leaders are meeting in secret with the banks and they are keeping the results of their investigations very close to the chest….I am certain they are being told, and they believe, that if the information they are uncovering “gets out” all hell will break loose.  The masters and minions of the machine fail to realize that they cannot keep the lid on all this forever….the information is all there.  The false affidavits, the forged assignments, the MERS mockery of our stable real property records.  The records cannot be destroyed and they cannot avoid forever the consequences and the harm caused by their extra-legal sorcery.

After reading  Gretchen Morgenson’s article in the New York Times which details the lengths the banks are going to in order to suppress the investigations of the United States Trustees and considering all of the clashes between the banks and our government institutions on one hand and the rights of the people on the other hand, I went back again to what has become a very important book for me, Hernando De Soto’s The Mystery of Capital.  This book has been out for many years.  It was written as more or less a guide book to developing countries, the basic premise is that the primary explanation for the success of the United States was the system of real property ownership that was developed in the early 1800′s.  Prior to building the United States’ system of open and public records of the private ownership of land, no other nation gave her people the ability to tap into the land’s value and resources.  There are numerous side benefits to all of this.  This ownership gave heretofore poor people with no stake in their own future or the future of the land a real stake in the future of both.  They owned the land and their potential was only limited by how hard they would work so they worked more and produced more than any people ever had.  They were tied to their land now.  There were geographic handcuffs which planted people in communities for generations so a far more stable society was developed with business and personal relationships grounded in the dirt that were respected…and with that developed more respectful and cooperative business relationships….you were going to be dealing with your neighbors for generations to come.

The reason why all this not so distant history is important is because it has all been destroyed in a very short period of time here in the United States, first with the Serpent of Securitization, then with the MERS Monster, and then the toxic title stew that they moved into our courts and into our heretofore stable and clear public land title system.

The court decisions that are being released across the country are a crazy quilt of fits and starts, some decisions reject important elements, others approve those elements, some federal courts affirming the toxic titles and procedures, others outright rejecting them.  It seems more and more the decisions are opposed to the Wall Streeters, the MERS Monster and the Securitization Serpent, but there is not uniformity and it is causing real mess.  Which brings us to the period 1797 to 1820 in the good ole US. The land was wild and free.  There were no prior private titles to the vast patches of lands that were being homesteaded and farmed by our rough and tumble forefathers.  Hell, the boundary lines between the states were not even clear.  Congress was busy trying to clearly define the boudaries of the states, while at the same time the farmers and mainstreeters were trying to define the boudaries of their own lands.

While the founding fathers in their fancy tights and funny white wigs get all the credit, the dirt crusted homesteaders, farmers and squatters were the most important figures in the development of this country.  They were the ones that got up before dawn, cleared the land and worked the fields 26 hours a day 395 days a year every day of their waking lives. No welfare here, no unemployment benefits, these American Heroes built this country one dirty, dusty row of corn at a time.  Now a problem with all their effort was they largely had no formal legal title to the land they were taming.  But through a variety of both legal and extra-legal means, they staked out their patch of virgin land, cleared it, fought it, wrested it and finally caressed “their” land until it was producing the corn, wheat, cotton that served as the economic lifeblood and the foundation upon which our greatness was built.

Formal and informal tradition developed that permitted these heroes to claim ownership of the land and formalize their claim on the land based on their effort.  The formal recognition of these traditions became the squatters rights or laws of adverse possession that still exist on the law books today.  These laws and traditions were widely respected across the many states and became formalized into various state laws.  Conflicts were common and in 1821, the United States Supreme Court declared Kentucky’s occupancy laws unconstitutional in the decision Green v. Biddle. The decision was widely viewed as a crushing defeat for the common people and a gift and recognition of the political power of the rich and largely absentee landowners…many of whom professed some sort of claim to the title of vast tracts of land that they did absolutely nothing with.

Green v. Biddle was an incredibly unpopular decision with the masses, the real people and the elected leaders of many states began to take note of the rising political importance of the farmers, the homesteaders, the little people.  The politicians began to view the scrappy homesteaders not as interlopers, but as figures far more powerful and important than the elites, the bankers and the absentee landowners.  These homesteaders began to organize, the politicians began to align with them and they all forged ahead to overturn the “treacherous conduct” of the United States Supreme Court.

In relatively short order states all across the country and even Congress passed laws and took other action to push back against the banks.  Between 1834 and 1856 the push back was pervasive that some considered the Green v. Biddle the most opposed decision yet issued by the Supreme Court, which became effectively overturned by state and even federal legislation.

So what’s the impact on the treacherous conduct we find our country faced with today?  The parallels are simple.  Our courts, especially in the State of Florida were sold a siren song by the banking industry and the legislatures.  Their message was simple, ignore all our mistakes, our fraud, our crimes our abuses of the voters and the people. We make the money, we own the money, we own all of you and we own this country.  Ignore your pesky property laws, disregard all your damn court rules of evidence and procedure and principles of fairness and integrity and equal treatment.  Your Constitutions mean nothing and Due Process has no place when you’re dealing with us and our contracts. Our Pooling and Servicing Agreements our Assignments, our corporate policies and procedures supersede your Constitutions and your Due Process.  Now get back in your courtrooms and throw these squatters, these settlers, these claimants off the land….DO IT NOW!

You still hear quite a bit of this now from the corporate mouthpieces and from the handful of bought and paid for elected officials….they recite the mantra that we must get through all this, whatever it takes in order to get this economy moving again.   But all of those pronouncements fly in the face of reality and are disputed by 5th grade economics.  The American people have already thrown bajillions of dollars at the banks and they in turn have thrown countless millions of people into the streets….and what good has it done any of us?  Well, it’s done the banks a helluva lot of good.  Massive, obscene profits, screw you and not even so much as a thank you very much.

But this has got to change.  The American people are waking up.  That great sleeping dog that is the American voter is starting to rise after being kicked repeatedly.  And here and there in statehouses across this country a few bright bulbs are starting to flicker….they’re starting to recognize the shift away from the banks and their big fat campaign checks.  Why heck, there might even be one, maybe two elected officials who might just start to view those bank campaign checks as a bit toxic….maybe after Iowa AG Tom Miller’s recent attention for taking blood money from the serpents, other AGs will think twice about courting payoffs from the Wall Street serpents.

The tide may be turning, but it is up to everyone of us to continue to keep the drums beating. Press the press.  Share these stories with every friend and colleague in your network.  Use social media and your own contacts.

There are many dark days ahead, but if we do not beat back these bank advances, all hope for this country is lost.  Remember that.  If we allow these abuses and advances to continue our nation is lost.

In courtrooms all across this country, basic rules of practice and fundamental rules of evidence and law are being totally ignored and cast aside because, “it’s only foreclosure” and “we’ve got to move these cases along”.  But the real question is….

Why the big rush to foreclose on homes?

I mean in this current economy, it’s not like there are nearly enough qualified buyers out there to absorb the current inventory of already foreclosed homes, much less the millions of properties that are in various stages of foreclosure.

Related to this line of questioning is a troubling phenomena of the shifting plaintiff or the unidentified plaintiff, which brings us to the next question I’ve been asking for months now…

Judge, do you have any idea who you are granting foreclosure to?

The fact of the matter is that in the vast majority of foreclose cases sloshing around the system now, noone has any real idea who is the ultimate beneficiary of the foreclosure judgment.  I’ve read through many of the Pooling and Servicing Agreements and many of the loans that were supposedly transferred into these trusts were not transferred in at the outset, so why should we believe they will be transferred post judgement?  Even when you think a property would go to Citibank because that’s the Plaintiff name and that’s the name on the note, the truth is that loan may be securitized and transferred to another party.

And now back to the shifting plaintiff or the unidentified plaintiff.  This phenomena represents a very troubling development for our national security, sovereignty and economic stability. Courthouses all across this country are processing, “substitution of party plaintiff”, “assignments of bid”, “phantom certificates of title” without even thinking of the consequences.  In what other court proceeding would judges permit parties to be substituted or switched around mid-litigation on an unsupported request from the litigant?  I get that this might happen a time or two, but the widespread nature of this practice is disturbing.  Total up the billions of dollars in property that is being transferred in foreclosure courts all across the country, then try and figure out who is taking title and who is benefitting….are they blank check Chinese corporations as we learned from the David Stern prospectus or is it Deustche Bank who is the real Wizard Behind the Curtain, as I recently discovered in a case I am taking to trial July 12, 2010 in Pinellas County? (For more on Deutsche Bank read here.)

Rather than ask any of these questions, we could just adopt the current prevailing philosophy….

Who Cares? It’s Only Foreclosure.

If you’re being sued by any entity acting as a trustee, i.e. “US BANK as trustee for the HP Series 2006-c Certificate Holders”, you need to be aware of a variety of issues that may be helpful in your case.  I will start another series of video blog posts on the “Capacity Argument”, because this argument works in nearly every case, but it is particularly appropriate in cases where Plaintiff is an exotic, alphabet soup Foreclosure Frankenstein.

Individual mortgages originated by lenders like New Century and Argent were pooled into groups of approximately 8,000 mortgages from around the country to form a Mortgage Trust which held mortgages which had (on paper at least) cumulative values of between 10-12 million dollars.  These mortgages that were grouped together and given a name like “HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2″. Interests in these mortgage trusts were then sold to teachers unions, investment funds and other institutional sources around the world.  Before selling the interests in these trusts, the institutional investors were required to prepare the contract that would govern the rights between the depositor of the mortgages, trustee of the new trust and the company that would be responsible for collecting payments from homeowners and sending those payments out to those who had invested in the trust.  This contract is called the Pooling and Servicing Agreement.  The important thing about the Pooling and Servicing Agreement is you will find in virtually every case that all of the parties who are involved violate nearly every provision of their own Pooling and Servicing Agreement.  This has important consequences that we will talk more about later, but the Securities and Exchange Commission rules requires these trusts to provide important other reporting information that was widely ignored or worse, falsified by the entities in control of these trusts.  Finding such information can be a key to defending your case.

The Securities and Exchange Commission Edgar Database can be found here. You can also put the name of your Frakenstein, Alphabet Soup Trust into quotes, “The IXIX 2006-A Trust” into a straight google search and see what comes up. Here are Step-By-Step instructions:

Finding Pooling And Servicing Agreements  (PSA’s)
For Securitized Mortgage Loans

The “Pooling and Servicing Agreement” is the legal document that contains the
responsibilities and rights of the servicer, the trustee, and others over a pool of mortgage
loans.  The Pooling and Servicing Agreement can be a stand-alone document or it can be
part of another paper, usually called the “Prospectus.”  If the securitization is public,
these documents must be filed with the Securities and Exchange Commission (SEC), and
will be available to the public at www.sec.gov.  Locating a Pooling and Servicing
Agreement on the SEC website can be a challenge. The most important information you will

need to find the Pooling and Servicing
Agreement is the name of the original lender and the title of the pool of loans.  We will
work through an example below.  Assume that the lender is Ameriquest Mortgage Co.
We don’t know the name of the pool that the homeowner’s mortgage ended up in, but we
do know that the mortgage was made on June 1, 2002.

Step One:
Go to www.sec.gov and click on “Search for Company Filings” under “Filing & Forms
(EDGAR).”    Under “General-Purpose Searches,” click on “Companies & other filers.”
Then, in the “Enter your search information” box, type in “Ameriquest” next to “Company name” and click on the “Find Companies” button.

Step Two:
The page you are now looking at shows a long list of the names of securitized pools of
loans.   We know the mortgage was made on June 1, 2002.  Look for the entry titled
“AMERIQUEST MORT SEC INC ASS BK PAS THR CERTS SER 2002 2.”  The
document number is CIK 0001175125.  Click on that number.  We selected this entry
because it said 2002 on it and the loan in question was made in 2002.  There may be
several other pools of mortgage loans that Ameriquest securitized in 2002 but this is the
first one we come to on this list (when reviewed in late February 2007) so we will pull it
up.

Step Three:
Now you see a list of documents filed with the SEC that are related to this pool of loans.
Scroll down to the bottom and you will see a document titled “Prospectus.”  This is the
document that will likely be the one you want, assuming that the mortgage loan you are
concerned about is in this pool.  We can only make an educated guess, unless you know

the name of the securitized pool in advance (which is unlikely). Click on either “htm or text”

next to this document and the Prospectus will appear.  Now,
bookmark this document on your web browser, so you can come back to it easily in the future.

Step Four

Is this likely to be the document you want?  Scroll down to page S-2 and you will see a
Table of Contents.  Included in that is the “Pooling and Servicing Agreement” which
starts on page S-76.  Also, scroll down one more page, past the Table of Contents, and
you will see a “Summary of Prospectus Supplement.”  Certain important information is
listed there, including the cut-off and closing dates for loans that will be included in this
pool.  The closing date is June 7, 2002.  Based on this information, you can assume that
this document governs the responsibilities of the servicer of the mortgage loan in
question, unless that servicer tells you otherwise and can back it up with a reference to a
different agreement or pool.   Other important information listed in this Summary includes

the title of the pool, and the
identity of the servicer and trustee.  The servicing rights may have been sold since this
document was filed and the current servicer may be a different company but the trustee
(the legal holder of the mortgage) should be accurate.

Step Five:
Go the Pooling and Servicing Agreement to find what you need to know.  It should
describe how the servicer is paid and by how much, who keeps late and other fees, what
authority it has to modify the loan or engage in workouts with homeowners, and its
obligations to pass mortgage payments on to the trustee.

Some of the best information I get comes from intrepid consumer researchers out there who care enough to dig into these things.  Perhaps the most powerful thing about this and other online forums is the ability for consumers and advocates to share what they’ve found.  In my estimation, what this pro-se Defendant found is enough to blow the lid off his foreclosure case…..read on:

I was served Lis Pendens last month, (April 2010), naming the plaintiff  Deutsche Bank National Trust Company, As Trustee for HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OPT2

I looked into the records for that entity in the SEC EDGAR online database and discovered that the last annual report was filed in 2007, contemporaneously with a FORM 15 filing.That Form 15 filing claimed a standing under 15d-6 of the 1934 SEC regulations which exempts the entity of filing an annual report, whereby the number of claimed investors had fallen below the SEC registration and reporting threshold of 300 persons. ( To my understanding, the same Form 15 filing is also used when a registered, reporting, entity is dissolved.)

I then began looking at many other securitized trusts in the EDGAR database. Literally dozens and dozens of these securitized trusts have done exactly the same thing. he trust is established and appropriate SEC documents are filed for a period of time, usually 1 or 2 years. The trust then files a Form 15 claiming exemption of the obligation to file reports with the SEC under 15d-6

The paper trail for the Trust with the SEC thereby *ends* Many of these trusts have not filed anything with the SEC for years. Many as far back as 2005 and 2006

Some of the SEC Form 15d-6 filings disclosed as few as 15 or less investors. Bear in mind, these are for trusts that purportedly hold well over $1 BILLION in mortgages, and there are dozens and dozens of these trusts with a mere hand full of investors! I also noted that the “agent of record” of many of these trusts have changed many times, and are very infrequently “named”, but list only an address and phone number, (usually in New York). In several of the cases I’ve looked at in the EDGAR database, I actually called some of the phone number listed at 3:00am EST and got the voicemail of someone at a bank in N.Y. Note that the answering party was NEVER a bank listed as the Trustee, (as Deutsche Bank is in my case), or the trust “administrator” as listed in the PSA or any subsequent SEC filings.

I actually got the voicemail of some fellow at HSBC Bank who was the “anonymous” contact in my case! My point is this;

Has anyone actually verified that the securitized trusts claimed to be under the trusteeship of some of these banks still ACTUALLY EXIST?

We’ve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the “plaintiff” has standing to bring the foreclosure action, has anyone thought to see if the “plaintiff trust” is even still active or not? Were many of these trusts actually dissolved after payouts from credit default swaps and TARP funds and the actual investors now long gone? We have no records to show whether they are alive or dead. Most of these trusts haven’t filed anything with anyone in years as far as I can tell.

Certainly, as in my case, Deutsche Bank, (as Trustee), still exists, but can these plaintiff securitized trusts be made to *prove* they still exist?

What happens to a foreclosure case if the plaintiff entity,(the securitized trust, *not* the Trustee for it), no longer exists or cannot prove it exists?

IT’S TIME FOR ME TO GET BACK TO AN ISSUE THAT I HAVEN’T TALKED ABOUT FOR A WHILE AND IT IS THIS CAPACITY ISSUE…BECAUSE IT STRIKES AT THE HEART OF THESE CASES.  SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN’T EXIST.

STAY TUNED AND GREAT WORK FROM THE PRO SE WHO SHARED THIS INFORMATION.