December 14, 2010
An affidavit has been filed in an Alabama foreclosure case of an attorney who actually did the securitization of a securitized mortgage loan trust of which the Plaintiff in the case is the alleged “trustee”, which affidavit confirms numerous standing issues which we have been arguing for years. The Affidavit of Thomas J. Adams specifically sets forth, by chapter and verse, the various provisions of the PSA which were violated by U.S. Bank and MERS in an attempted assignment of a toxic loan to a securitized mortgage loan trust over a year after the trust closed.
The Affidavit sets forth the limitations, in the PSA, as to what assets the trust can acquire; how the trust can acquire them; and detailing how the post-trust-closing assignment of a toxic loan known to be in default at the time of the purported assignment is violative of the PSA on multiple levels, including destroying the trust’s REMIC status under the IRS rules. The Affidavit also examines the purported transfer of the note by MERS under MERS’ own rules and regulations, and concludes that the purported transfer of the note violates MERS’ own limitations. The Affidavit further sets forth that the PSA requires a clear chain of endorsements of the note all the way to the trust, and highlights that none of the required interim endorsements or a specific endorsement to the trust was ever made.
Thus, this evidence, which cannot be controverted as it is drawn from the very PSA governing the trust of which the foreclosing Plaintiff purports to be the trustee, demostrates that the loan did not, and could not, have ever made it into the trust, and thus the trust’s claiming to have standing to foreclose is essentially a fraud upon the court. Significantly, the opinion by New York Judge Arthur Schack in the matter of Deutsche Bank v. Rolando Campbell, issued in 2008, discussed many of these same issues.
As such, one of the most important steps in defense of foreclosures by banks “as trustee” for a securitized mortgage loan trust claiming to be a proper foreclosing party is a thorough examination of the PSA for the very types of prohibited conduct identified in the Adams affidavit, and filing of the PSA with the Court, if proper, where there is any evidence of post-trust-closing assignment; assignment of a toxic loan to the trust; or a prohibited MERS assignment.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com