June 14, 2010

In a new case where FDN’s Jeff Barnes, Esq. and local New Jersey counsel Michael Jacobson, Esq. have been retained, Deutsche Bank as Trustee for a securitized mortgage loan trust (Plaintiff, “DB”) filed a foreclosure action claiming entitlement to the mortgage and note by virtue of an alleged assignment which DB admits was unrecorded as of the date that the Complaint was filed, and where DB also admits that the loan was claimed to be in default over 4 months before the alleged assignment of mortgage was executed. As such, DB has admitted that it has assigned a loan which it knew to be toxic into a securitized mortgage loan trust as of the time of the alleged assignment.

This is exactly the same situation, also involving Deutsche Bank, which was the subject of the Ronaldo Campbell decision in New York from 2008 (the case having been filed in 2007) where Deutsche Bank purchased a loan which was 142 days in default from MERS, as “nominee” of the original lender, for placement into a securitized mortgage loan trust. The court in that case indicated that this act was a violation of Deutsche Bank’s fiduciary duty to the noteholders of the trust. The NY court conditioned any refiling of DB’s motion for summary judgment, which was denied without prejudice, on several conditions, including an affidavit from an officer of the trust explaining why DB, as “trustee” for the trust, purchased a nonperforming loan from MERS. 

To date and despite repeated discovery requests from FDN attorneys in several cases, DB has failed and refused to provide any evidence of any source of authority for DB, as a “trustee” of a securitized mortgage loan trust, to transfer a known toxic loan into a securitized mortgage loan trust, which trust was allegedly created for the purpose of serving as collateral for mortgage-backed investments and where the income stream from the mortgage loans placed into the trust was intended to, among other things, satisfy overcollateralization requirements, fund expenses of the trust, and pay dividends to the noteholders.

We suspect that Deutsche Bank manufactured the purported “assignment” so that it could tap credit enhancements such as excess interest reserves, interest rate cap agreement payments, LPMI, and other insurances so that it could be paid at least once (and possibly more than once) on the Note (which is essentially the thurst of the SEC v. Goldman Sachs litigation), and then manufacture a fraudulent foreclosure so that it could take the borrower’s property as well.

As such, Deutsche Bank is still today, in 2010, doing with impunity what at least one court found to be very suspect two years ago.

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