In order for this Fraudclosure Con Game to continue, we’ve all got to just sit back and allow the lies and the fraud and the crimes to continue. We’ve all become quite good at it in this country, pretending like none of this matters. Ignoring contracts, ignoring law, all of us marching in lock step so the banking industry can continue with this fraud.
Where are the good lawyers? Where are those that will step up and demand real truth?
I love the way April Charney states this all so clearly and plainly….
The trial court misapplied the law and committed reversible legal error in granting judgment of foreclosure in favor of Appellee because the Appellee trust did not have any legal right to foreclose the mortgage at the commencement of this action.
Followed by, “DUH!”
The Appellee is a trust established pursuant to a trust agreement titled ” Pooling and Servicing Agreement Dated as of August 1, 2005″ (hereinafter ” PSA”). The PSA for the Appellee trust provides, in Section 2.09, that Appellee (represented in this action by HSBC as trustee) is an express trust governed by the laws of the state of New York. (R. Vol. 6 Pg. 925-1127).
As a New York trust, Appellee’s legal existence and capacity is controlled by the PSA pursuant to which HSBC Bank, as trustee, and Wells Fargo, as custodian and servicer, derive all their respective trust related rights, powers, obligations and duties in the forming the Appellee trust, in the conveyance and transfer of ” qualified mortgage loans” into the corpus of the Appellee trust, and in the servicing of the qualified mortgage loans transferred into the trust.
The PSA is the binding trust contract that controls all of the actions of the trustee, the custodian and the servicer with respect to the Appellee trust. (Id).
On April 5, 2005, Appellant refinanced the debt on her home giving a promissory note to Trimerica Mortgage Corporation secured by a mortgage recorded in the official records of the Duval Circuit Clerk on April 19, 2005 at book 12421 and page 1878. (R. Vol. 7 Pg. 1134-1135, 1229-1237).
The referenced PSA (R. Vol. 6 Pg. 925-1127) and a related and incorporated Custodial Agreement (R. Vol. 7 Pg. 1156-1195) were introduced into evidence at trial by the Appellee.
Under the Custodial Agreement in the present case, ACE agreed to purchase Mortgage Loans from Seller DB Structured Loan Products pursuant to the Mortgage Loan Purchase Agreement. (R. 1156-1195).
Mortgage Loan is defined in the Custodial Agreement consistent with the PSA as being ” [e]ach mortgage loan identified on the Mortgage Loan Schedule” that is supposed to be attached to the Custodial Agreement. (Id).
There was no mortgage loan schedule, meeting the definition of a “mortgage loan schedule” contained in the PSA, attached to the PSA or attached to any other document introduced into the evidence in this action. There was supposed to be a list of loans attached to the PSA, but there is not. (R. Vol. 6 Pg. 925-1127).
Additionally, the Mortgage Loan Schedule is defined in the Custodial Agreement the same as it is in the PSA as ” The schedule of Mortgage Loans to be delivered by the Depositor to the Custodian and the servicer (with a copy to the Trustee) two Business Days prior to the Closing Date and to be annexed” to the Custodial Agreement ” as Exhibit 8″. This Mortgage Loan Schedule must contain the same 37 data points described in the PSA. (Id). However, there was no evidence presented in this case that a Mortgage Loan Schedule was attached to the PSA.