Quote:

Finding Pooling and Servicing Agreements is Key to Killing Your Foreclosure Case!

If you�fre being sued by any entity acting as a trustee, i.e. �gUS BANK as trustee for the HP Series 2006-c Certificate Holders�h, 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 �gCapacity Argument�h, 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 �gHSI 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, �gThe IXIX 2006-A Trust�h into a straight google search and see what comes up. Here are Step-By-Step instructions:

Finding Pooling And Servicing Agreements (PSA�fs)
For Securitized Mortgage Loans

The �gPooling and Servicing Agreement�h 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 �gProspectus.�h 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�ft know the name of the pool that the homeowner�fs 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 �gSearch for Company Filings�h under �gFiling & Forms
(EDGAR).�h Under �gGeneral-Purpose Searches,�h click on �gCompanies & other filers.�h
Then, in the �gEnter your search information�h box, type in �gAmeriquest�h next to �gCompany name�h and click on the �gFind Companies�h 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
�gAMERIQUEST MORT SEC INC ASS BK PAS THR CERTS SER 2002 2.�h 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 �gProspectus.�h 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 �ghtm or text�h

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 �gPooling and Servicing Agreement�h which
starts on page S-76. Also, scroll down one more page, past the Table of Contents, and
you will see a �gSummary of Prospectus Supplement.�h 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�fve found. In my estimation, what this pro-se Defendant found is enough to blow the lid off his foreclosure case�c..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 �gagent of record�h of many of these trusts have changed many times, and are very infrequently �gnamed�h, but list only an address and phone number, (usually in New York). In several of the cases I�fve 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 �gadministrator�h as listed in the PSA or any subsequent SEC filings.

I actually got the voicemail of some fellow at HSBC Bank who was the �ganonymous�h 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�fve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the �gplaintiff�h has standing to bring the foreclosure action, has anyone thought to see if the �gplaintiff trust�h 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�ft 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�fS TIME FOR ME TO GET BACK TO AN ISSUE THAT I HAVEN�fT TALKED ABOUT FOR A WHILE AND IT IS THIS CAPACITY ISSUE�cBECAUSE IT STRIKES AT THE HEART OF THESE CASES. SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN�fT EXIST.

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

http://mattweidnerlaw.com/blog/2010/05/f....

View at original source for hyperlinks to references and resources.

PLEASE PIN THIS THREAD.

I have long asked whether there was any standing to foreclose if the Trust holdings of MBS had been paid off via CDS; this information would seem to verify that it is probable in some cases that they do not.

-This would mean that ongoing payments towards mortgages to Servicers of the Trusts which have been dissolved AFTER being paid off are effectively being stolen by Banks and Hedgies, and Foreclosures by these Servicers which are claiming to have rights to the underlying do not; -NO ONE DOES as the Mortgages have been cleared/paid off and the Trusts NO LONGER EXIST.

I'm going to try this....unfortunately, I anticipate it to be far harder than his example here using Ameriquest. I've got to sort through pools created by Countrywide back in the heyday.

Anyone else want to join me?

You should be able to find the info for your trust through EDGAR, that is if you know which trust claims a mortgage on your property. You want to cross-reference what was supposed to happen according to the PSA with what was actually recorded in the county land records.

I've got nothing recorded in my county land records other than my original mortgage with Countrywide. No assignments. No nothing.

Of course, I'm being serviced now by BAC....

While I haven't yet started to look, what should I have in front of me? Have you done this Tally? I've got to go through Countrywide pools from 2002. Imagine they're many times the size and many more of them than Ameriquest, as was used in Weidner's example.

I would modify these suggestions a bit. Step one is to pull a complete title history of your property. In many of the foreclosure cases that I am currently handling, there is an assignment of the deed of trust directly from the originating lender to the REMIC trust that purportedly holds the note. If that doesn't work, before you start using "needle in a haystack" search techniques, you need to look at when the loan was originated. If in 2007 or after, it was likely part of a private placement securitization and therefore not accessible through review of SEC public records. If before 2007, and I think there is a publicly filed PSA for a loan but I can't find the information in the title records, I have a consultant that I use who can locate this information by review of the loan servicer tapes. If you are gathering this information in anticipation of litigation, it is worth the cost to be sure that you are pulling down the correct PSA.

Edit: You can also make a TILA request for this information. Just don't be surprised when the response is a load of crap, e.g. it identifies the loan servicer not the securitization trust.

Steph, if you don't know which securitization trust and it's not in the land records, you'll have to do some sleuthing to figure out which trust. In my case the trust was recorded in the land records.

You can use www.CTSLink.com which is a Wells Fargo site operated in their capacity as Master Servicer in many MBS deals It is free to create an account at the site.

At this site you can access the loan level collateral files. You can search each MBS collateral file for your loan# until you find it and determine which Trust lists your loan as collateral.

Doesn't a CDS pay off the bad "loan" but the bad loan now becomes the property of the CDS writer (The "swap" in Credit Default Swap).

So, what do I need to use to search the CTSLink site? My loan number?

The trusts are generally numbered by year they were issued. You could look for your loan number in trusts that were issued the year your mortgage was originated. No guarantee you'll find it, but if you don't know the trust, there is only so much you can do.

How quickly after a mortgage was written were they put into a trust? Of course, I have the exact date I signed my mortgage and the loan number.

To find your PSA go to secinfo.com and search for your lender and the year of your mortgage ie. Wells Fargo 2006. You might have to register to use the search function. The search will return a bunch of SEC filings. Some or most of the filings will look like this:

Quote:

Wells Fargo Mortgage Backed Securities 2006-11 Trust

These are the PSAs.

Clicking on a PSA will get you all of the SEC filings for that PSA. One of the documents inside the PSA is called the Free Writing Prospectus. This is where the individual mortgages can be found. They're listed by loan number, city and zip code. The loan number probably won't be the same as the number on your mortgage. My best guess is it's derived from the MERS loan number.

Your best bet is to open up the FWP doc and use your browser search function to locate any mortgages in your zip. Good luck and have fun.

My loan is claimed by Freddie Mac and serviced by Wells Fargo so it isn't included in any of the PSA's I've searched.

Thanks Teddy - that helps. I hope.

Quote:

Doesn't a CDS pay off the bad "loan" but the bad loan now becomes the property of the CDS writer (The "swap" in Credit Default Swap).

No. Not unless a transfer of Ownership was written into the CDS Contract.

That would be like Insuring Your house against fire, and then when there is a fire getting the Insurance Payment; -but, losing the Title to the Property...

It is My opinion that MOST if not NONE of the CDS Contracts written contain NO clause wherein the Underlying Asset is ceded upon Exercise of the Contract.
-Especially since a great many CDS were bought by Entities which did NOT own the Assets upon which the Contracts were written.

For instance: it is MY understanding that Paulson DID NOT own ANY of the MBS upon which GS 'Abacus' Derivative was written...

^

This does not change the fact that in many cases where the Buyer of Derivative Protection 'Insurance' on MBS that the Mortgages Underlying the MBS have been effectively paid off.
-Some amount of the Mortgages Notes have in fact been paid; -the fact that the Mortgagee was not the Entity/Party Who paid notwithstanding.

This is one reason that I believe the Servicers are effectively stealing Properties.
This is WHY Robosigning is SO damned lucrative and is being done with such zeal.


The REMIC/Trusts never received the Note.
MERS obscures Ownership.
IF the MBS have been satisfied the Investor doesn't know if by Derivative hedge or by Pre-Payments/Re-Financing.

So, there is neither a chain of discernible Ownership nor are the Foreclosures by Servicers being disputed by the Investors -as in many cases they have been paid back and don't know that there IS a loan/MBS anymore to be concerned about.

-The Servicers know that the Investers are not going to come looking for Payments from them as the MBS have been satisfied/paid off.

The Servicers are now in a position to simply pocket the Payments form the Borrower, or to Foreclose on the Borrower, or to sell off a new MBS containing the same Mortgage with a new identifying number attached; without any worry of interference from the Investors.

This is simply a complex form of Theft by Account Obfuscations and MERS Documentary shenanigans and Servicers filing false but generally unchallenged Affidavits in Foreclosure Courts.

The biggest problem is the obvious and well argued one: the Borrowers didn't pay for the Property and People don't want Borrowers that have not paid off their Note THEMSELVES to 'get a Free House'; but, those making this argument fail to concede that for the Courts to blindly accept Robo-Signed Affidavits from the Servicers and grant them the right to Foreclosures without proving WHO owns the Underlying that they are allowing the Servicers/Banks 'to get Free House'.

IMHO, for the argument against Borrowers being given Title if the Note is satisfied whether by their payments or not should balanced against the argument against Lenders/Servicers/Banks being given Title whether they can or cannot prove their Ownership of the Note and whether the Mortgage has been effectively paid off whether by the Borrower or by ANY Other Entity/Party/Insurance based solely upon the actual facts.


Let's simplify this:


1.John loans Bob $500 for an Asset.
The Asset being pledged as Collateral for the $500 loan.
The loan has a term of some years and the Interest on the loan is going to make John a solid return if it goes to term with no problems.

2. John makes Mike the Servicer: Mike will collect the payments from Bob and deliver them to John for the course of the Loan for a fee.

3. Mike uses his fee to purchase a CDS ( Insurance ) on Bob's Loan to John.

4. Bob defaults on his loan from John -and Mike's CDS pays off bigtime.

5. Mike uses some of his CDS pay-out to give John back his Principal and John thinks Bob paid Mike early.
-John doesn't get all the interest he was gong to get from the loan going to term; but, John goes away satisfied because He received his Principal back.

6. Now that John has filed away or destroyed his loan contract with Bob and forgotten about the whole thing -thinking that the loan was simply paid off early by Bob; Mike is in a position to put the screws to Bob for the balance of the loan including all the Interst ( maybe even a nice Penalty Rate), any fees Mike wants to ladle on -or Mike can decide to seize the Asset that the loan was taken for and collateralized with.
-John is now out of the picture and thus does not interfere in the situation that Mike has made of his contract/loan with Bob...

7. Bob only knows that HE didn't pay the loan off so He likely yields the Payments, Higher Penalty Rates and Fees Mike wishes to impose; or simply yields the Asset to Mike.

8. IF Bob contests whether Mike has the Right to demand the loan payments or seize the Asset; Bob ends up being pilloried in Public Opinion with: "That ******* Bob wants a FREE HOUSE", and in Court with Mike's assertion that Mike has a duty to extract the loan payments and fees or seize the Asset on behalf of John whom He still purports to legally represent...

Public opinion and and the Courts have not the intelligence to understand what Mike has been doing or the sense of Justice to inquire as to whether Mike's demands have any merit considering that the loan to John may actually have been paid -even if it was paid off by a Third Party/CDS/Insurance Pay-Out.


THIS IS WHERE WE ARE.

Hmmm, interesting theory Throxx. I haven't run across that scenario. I'm not saying it hasn't happened, only that I haven't run across it.

Here is a scenario I have run across, and is even more lucrative, called double dipping. Karl tickered it once that I know of. The reason we know about it is because the entities involved are all suing each other it. Except the investors, they seem to still be in the dark that they've been screwed.

The scenarios are all variations of something like this. Loans are all insured when placed into the pools, on an individual basis. When they default, the insurance policy pays off the remaining value of the loan (typically full value or close). In most scenarios, these are the loans that default during the initial period of the trust creation. Allegations are made that the depositor knew they were delinquent when deposited, but were rated AAA, or something misleading. The insurer pays off the depositor for the loan. Then either the depositor does a putback with the originator and gets paid a second time, or leaves the loan in the trust for the investor to collect through foreclosure, i.e. the depositor gets paid for the loan from the investor. The insurers now, most of whom have since filed bankruptcy, have filed lawsuits. The primary allegations in the suits have been over reps and warranties, that the depositors knew the loans were bad but claimed they were good. Through discovery they've found the rest of the information out about the eventual disposition of the loans that had claims paid off. There is a suit by MBIA v. Credit Suisse (link below) that alleges they were even advancing funds to New Century to place more loans, knowing New Century's loans were piles of crap and had something like 15% early default rates, so the depositor, CS, could pull this particular double-dipping scam off.......... collecting from MBIA and then doing putbacks to New Century, until New Century filed bankruptcy. When one of CS's key employees noted the high default rate (60%) on one trust and requested a review, the suggestion was shot down as to not create "problems and confusion". Subsequently CS modified their quality control policies (so more loans would meet the criteria).

Who thinks this was an isolated practice? Actually, there is a similar suit by Ambac against EMC and the insurers have filed suits against multiple lenders, for at minimum, violating reps and warranties. It will be years before this mess gets sorted out through the courts. It seems slam dunk to me that in a fair and just world, awards would be issued in favor of plaintiffs against these lenders. However I've lost faith that our court system isn't as rigged as the rest of our political and economic system in favor of TBTF.

https://iapps.courts.state.ny.us/fbem/Do....

bilge