Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Meghan
Does a trust no longer exist if the Form 15-15D is filed in 2008? 


This Web site shows up on my computer with very large letters, so I have to scroll way down to see the article. 

I checked the SEC and sure enough, the Form 15-15D was filed in 2008 for a trust in my foreclosure. I just don't know how to use that information or how to force the plaintiff to prove the trust exists, or maybe it is not worth pursuing as a defense. Any help would be appreciated.

By the way, I think I saw this article on Matt Weidner's site, too, so I am not sure who wrote this. I don't remember if Matt gave credit to this site, or vice versa. 
 
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Meghan
Here is an excerpt from the blog:

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.)
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Bill
I'm not an attorney and this isn't legal advice.

This appears to be more Internet "garbage" floating around cyberspace waiting to be flushed.  These trusts used a loop hole that allowed them to not file reports with the SEC.  I personally think this is quite common after looking at quite a few trust documents in EDGAR. 

I don't see how the filing of a "Form 15" in any way relates to the "existence" of a trust, rather, it just shows a small number of investors.  Many times these are mutual funds and pension plans NOT individual investors (people). 

I personally feel the Capacity argument is a very ROBUST argument as a defense to foreclosure.  Especially when the originator is no longer in business.  The servicers who are often prosecuting the foreclosure usually has a large PROOF problem in regards to the trust actually obtaining a mortgage and which ones the trust actually owns.   

This is the importance of keeping OUT the trust documents such as the PSA. 

I would be challenging the Plaintiff's capacity, but I would never introduce ANY SEC document in regards to the trust.  It's just opening a can of worms that will hurt your case more then help it. 


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Meghan
Thanks, Bill. 

The attorney I mentioned  has long blogged about capacity being a considerable defense.

Here's a bit of a twist that I found today--interesting case related to noncompliance with the PSA: 

September 1, 2011

Jeff Barnes, Esq. has been admitted pro hac vice to the Superior Court in and for Sussex County, Delaware in connection with a foreclosure action brought by Bank of New York Mellon as alleged trustee for a First Horizon securitized mortgage loan trust. BONY claims to have succeeded to the rights to the mortgage loan through MERS “as nominee” for First Horizon. The MERS and securitization issues are presently unresolved in Delaware as they are in many other states.

In Michigan, the Judge having juridsiction over the Hendricks decision, where Mr. Barnes and his local counsel James Fraser, Esq. prevailed on summary judgment against US Bank for its failure to comply with the PSA in allegedly transferring the homeowners’ loan to the securitized mortgage loan trust, has denied USB’s Motion for Reconsideration of the summary judgment ruling. The details of this decision were previously published on this website. 

The Hendricks decision was based in part on the same legal principles set forth in the Horace decision from Alabama which also granted summary judgment to the homeowner, finding not only that there was a failure to comply with the PSA in connection with the claimed transfer of the mortgage loan to the securitized trust, but also holding that the homeowner was a third party beneficiary of the PSA.

Read more at:

Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com

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Bill

I'm not an attorney, this isn't legal advice.


Meghan wrote:
Thanks, Bill. 

The attorney I mentioned  has long blogged about capacity being a considerable defense.

Here's a bit of a twist that I found today--interesting case related to noncompliance with the PSA: 

September 1, 2011

Jeff Barnes, Esq. has been admitted pro hac vice to the Superior Court in and for Sussex County, Delaware in connection with a foreclosure action brought by Bank of New York Mellon as alleged trustee for a First Horizon securitized mortgage loan trust. BONY claims to have succeeded to the rights to the mortgage loan through MERS “as nominee” for First Horizon. The MERS and securitization issues are presently unresolved in Delaware as they are in many other states.

In Michigan, the Judge having juridsiction over the Hendricks decision, where Mr. Barnes and his local counsel James Fraser, Esq. prevailed on summary judgment against US Bank for its failure to comply with the PSA in allegedly transferring the homeowners’ loan to the securitized mortgage loan trust, has denied USB’s Motion for Reconsideration of the summary judgment ruling. The details of this decision were previously published on this website. 

The Hendricks decision was based in part on the same legal principles set forth in the Horace decision from Alabama which also granted summary judgment to the homeowner, finding not only that there was a failure to comply with the PSA in connection with the claimed transfer of the mortgage loan to the securitized trust, but also holding that the homeowner was a third party beneficiary of the PSA.

Read more at:

Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com

The problems with ANY securitization argument is spelled out in this article. 

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The MERS and securitization issues are presently unresolved in Delaware as they are in many other states
.

 
Securitization is VERY complicated.  It goes beyond the several hundred page documents like the PSA.  It encompasses local property laws, the UCC, NY trust law (or Delaware), local contract laws, ect..  Until we get some decisions on these issues from places like NY which govern the formation of these trusts, it is very difficult to get any traction with these arguments, especially for a Pro Se. 

I'd also like to point out that the case law involving challenging the PSA requirements is almost non-existent.  There is a different standard at a trial vs. summary judgment.   

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prevailed on summary judgment against US Bank for its failure to comply with the PSA


As a defendant in SJ you only need to show the existence of a fact in dispute that the court needs to decide at trial to defeat a motion for SJ.  This is NOT a final decision on the MERITS of this argument. 
 
While I would not dismiss these arguments (someone has to make them), if they are NOT well researched and well written they may have cause a loss of credibility and detract from well plead robust defenses.  Personally, I would NOT make these arguments UNLESS the trust documents were admitted into evidence OVER MY OBJECTIONS.
 
Hopefully we can get some POSITIVE case law soon from some of these sharp energetic attorneys like Mr. Barnes. 
 
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TheEquitableOne
I'm not an attorney. I don't even play one on TV. So this isn't legal advice.

I think filing a 15D releases the trust from a duty to report. It does not mean the trust no longer exists, merely that it needn't continue filing Form 10Ks.

Whether the trust exists, still exists, or ever existed, is a question for a secretary of state to answer. Find the state the trust claims to be registered in and contact the SOS to see if they ever registered, or if they are still registered. State of incorporation should show in the SEC filings. Most SOS have websites where you can search for corporation or trust registration.

I am not aware this issue has been litigated AT ALL as it may relate to foreclosure. It is yet another potential argument that seems to beg more questions rather providing anything like a clear answer.

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Bill

TheEquitableOne wrote:
I'm not an attorney. I don't even play one on TV. So this isn't legal advice.

I think filing a 15D releases the trust from a duty to report. It does not mean the trust no longer exists, merely that it needn't continue filing Form 10Ks.

Whether the trust exists, still exists, or ever existed, is a question for a secretary of state to answer. Find the state the trust claims to be registered in and contact the SOS to see if they ever registered, or if they are still registered. State of incorporation should show in the SEC filings. Most SOS have websites where you can search for corporation or trust registration.

I am not aware this issue has been litigated AT ALL as it may relate to foreclosure. It is yet another potential argument that seems to beg more questions rather providing anything like a clear answer.


1.  Are trusts Incorporated?

2.  Are they required to register with the SOS?
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Timmy

The 15-15D is also a scam that allows the trust to quit reporting because there are less than 100 investors.  When you read the fine print as I did in my trust one investor owned ever share of each trench of the investment.  I keep seeing CEDEFAST or CEDE & CO FAST as the investors.  CEDE & CO FAST is like the Fed they are the holding company which holds the shares in street name not the name of the investor so the trust basically said we only have 1 investor there for we can terminate the Registration so we can continue to hide our lies.  There are probably 1000’s of investors who where f*ed because of the lack of reporting and boldface lies told to them because the company and trust company was not being held accountable.  The SEC should have stopped this but I guess they were too busy watching porn and helping Mr. Madoff with this investment strategies. 

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TheEquitableOne
Bill,

In response to your question #2 it is my lay opinion (I'm not an attorney and therefore cannot have a professional opinion, or offer legal advice) that Delaware, the state in which many of these trusts allege to be incorporated, requires statutory trusts to be registered through/with the SOS.

The Delaware statute/s relating to domestic statutory trusts can be found here:

http://delcode.delaware.gov/title12/c038/sc01/index.shtml

In re a domestic statutory trust see § 3810. Certificate of trust; amendment; restatement; cancellation.

(a)(1) Every statutory trust shall file a certificate of trust in the office of the Secretary of State. The certificate of trust shall set forth:

a. The name of the statutory trust;

b. The name and address in this State of at least 1 of the trustees meeting the requirements of § 3807 of this title;

c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is not to be effective upon the filing of the certificate; and

d. Any other information the trustees determine to include therein.




The Delaware statute/s relating to foreign statutory trusts can be found here:

http://delcode.delaware.gov/title12/c038/sc02/index.shtml

In re a foreign statutory trust see § 3852. Registration required; application.

(a) Before doing business in the State, a foreign statutory trust shall register with the Secretary of State. In order to register, a foreign statutory trust shall submit to the Secretary of State:







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