Naked Capitalism – American Securitization Forum Tells Monstrous Whoppers in Senate Testimony on Mortgage Mess

American Securitization Forum Tells Monstrous Whoppers in Senate Testimony on Mortgage Mess

Well, I suppose one can defend the lies testimony offered by American Securitization Forum executive director Tom Deustch before the Senate Banking Committee yesterday if one subscribes to the Through the Looking Glass theory of usage:

When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’

And we all know how well things turned out for Humpty Dumpty….

Seriously, though, as we will see shortly, Deutsche gave one of the most outrageously dishonest presentations I can recall ever seeing, and readers know I specialize in calling that sort of thing out.

By way of background, we’ve discussed for some time the bigger implications of problems witnessed in foreclosure battles all over the US. Increasingly, consumer lawyers are recognizing that they can often successfully challenge foreclosures in which the loan was securitized by examining whether the party trying to foreclose really has the standing to do so, which is legal-speak for whether they are the proper party. If the loan was securitized, it is owned by a specific trust, and the trustee for the trust should be the party taking action. The trustee needs not only produce the note, but if questioned, also to demonstrate that it is the right party to enforce the note (note this is theory; some judges are more predisposed towards banks than others).

The problem is that the pooling and servicing agreements, which governs the formation and operation of securitization trusts, have very specific provisions for how the notes were to be conveyed to the trust. The notes were to be conveyed through multiple entities, which each transfer being a “true sale” before getting to the trust (this was to create “bankruptcy remoteness” so that if the originator failed, its creditors would not be able to take notes back from the trust to satisfy their debts).

The PSA called for the note to be endorsed by the intermediary parties (either in blank or specifically to the next party). The notes were also to be conveyed by a specified date, which in nearly all cases was no later than 90 days after the closing of the trust. The trusts were required to be organized under New York law, and New York trust law is unforgiving. Trusts can operate only as specifically prescribed; if the notes were not conveyed to the trust in the manner set forth in the PSA, it cannot deviate from its instructions and somehow make exceptions (it would be deemed a “void act”) .

Be sure to check out the rest here…


6 Responses to “Naked Capitalism – American Securitization Forum Tells Monstrous Whoppers in Senate Testimony on Mortgage Mess”
  1. Buyer says:

    btw, yes, I know Deutsche Bank and Tom Deutsche aren’t the same.
    It just so happens my Trustee is DB, which explains how this came up in a search.

  2. Buyer says:

    “A Deutsche Bank spokesman noted that the mortgage servicer, not the trustee, is usually responsible for handling foreclosures.”

    “And, as a trustee, says Deutsche Bank spokes­man John T. Gallagher, Deutsche Bank “is not responsible for foreclosures or selling foreclosed property.”

    “Such decisions are made exclusively by the servicing companies, according to contracts for the different securitization trusts. In addition,” Gallagher says, “the determination of whether or not to pay foreclosure-related costs such as property upkeep and property tax payments are also the exclusive responsibility of the servicing companies, not the trust company.”

    “Deutsche acts as a trustee and has an administrative role in such cases, but has “no beneficial ownership stake or interest in the underlying mortgage loans,” spokesman John Gallagher said.”

    “The trust company holds legal title for the benefit of investors.”

    Gallagher said loan-servicing companies, not the trustee, “are responsible for foreclosure activity, maintenance of foreclosed properties and resale of foreclosed properties.”

    …, why is the Trustee suing me?

  3. Buyer says:

    My PSA goes on to pass ALL Trustee rights, by Power of Attorney, to the Loan Servicer, specifically including foreclosure.

    It also passes the notes, in some way I’ve yet to determine, to collateralize the Certificates.
    In my case, these Certificates were issued by Bear-Stearns (now, JPMorgan 2008) and explicitly call for the Certificates to be made out to “Cede & Company”, going on to state they will be the defacto ownerns of the Certificates.

    So, they did truly sell off only the net cash flow from income on the Certificates, and not the Certificates themselves.

    My question would be how the Certificates, more specifically the Certificate owners (Cede & Co), collateralized?
    It seems once done, the Trustee/Trust would no longer have interest in the notes again.

  4. Even if everything had been perfectly executed in regards to “accepted” securitization practices, how can changing ANY of the customer service, payment rules or penalty impositions be legal if the mortgage payer/owner (the home owner) did not give their expressed, written consent?

    Resecuritization of the same mortgage note over and over does not allow for the cost or terms of the note to change even one penny, unless in each and every CONDITION the change favored the mortgage payer/owner (the homeowner). This is my opinion but, I basing my opinion on commons sense here.

    Because of my prior Chase Bank protest blogs I am well aware of the entire “change in terms” racket, and it is a racket that should be overthrown in court.

  5. Lit Gant says:

    The liars are lying to the liars. It’s a party of liars enjoying and getting paid to tell the lies and to listen to them. All we lack is some fake explosions and we could call this the Foreclosure View. We have the right, the left, the old, the pretty, and the all the fools getting TV time. They are liking it and making sure they get copies of the videos for future election ad clips. And we stupid Americans will go out and vote straight donkey, elephant, or ostrich. In the mean time back at the robo-court houses the senior judges in their depends trying to scoop up some extra cash to play bingo at the Sacred Heart church, are stamping summary judgments like mad. Hey its a circus and the clowns are really hamming it up. And we are all paying for this mess. Wait, there is another bail-out coming. After they pass legislation making all the fraud legal, the republicans will make sure a new TARP is pushed through. God help us all. American is hostage to the big banks and lying politicians..

  6. debi J says:

    How is lying through your teeth in front of congress okay?? This is the worst era to be living in in our whole history. Can’t wait til these guys know what prison feels like. If this is allowed to continue, what’s the point? How about a thing called a lie detector?? I don’t think that is even necessary when we have all the info already! Remember 2008 and AIG?? Come on- how can this arrogant ass possibly think you can lie like this when all the info is already available to the average Joe. This guy needs to be fried. Let’s pick a good state for that! Debi

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