REMIC Armageddon on the Horizon?

It’s about time somebody recognized it.  David Reiss and Brad Bordon posted a dynamic review of the most recent ‘slap down the banks’ cases of Saldivar and Erobobo and the potential impact on the [failed] REMIC tax shelters in REFinBlog.

David Reiss writes: “Brad Borden and I have warned that an unanticipated tax consequence of the sloppy mortgage origination practices that characterized the boom is that MBS pools may fail to qualify as REMICs.  This would have massively negative tax consequences for MBS investors and should trigger lawsuits against the professionals who structured these transactions. Courts deciding upstream and downstream cases have not focused on this issue because it is typically not relevant to the dispute between the parties.

Seems that is changing. Bankruptcy Judge Isgur (S.D. Tex.) issued an opinion in In re: Saldivar, Case No. 11-1-0689 (June 5, 2013)) which found, for the purposes of a motion to dismiss, that “under New York law, assignment of the Saldivars’ Note after the start up day [of the REMIC] is void ab initio.  As such, none of the Saldivars’ claims” challenging the validity of the assignment of their mortgage to the REMIC trust  “will be dismissed for lack of standing.” (8) [Yessiree! Judge Isgur gets the picture. It takes a good deal of intellect and guts to adjudicate the truth these days. DC Ed.]

If this case holds up on appeal, it will have a massive impact on many purported REMICs which had sloppy practices for transferring mortgages to the trusts. That is a big “if,” as the case relies upon Erobobo for its take on the relevant NY law. Erobobo, a NY trial court opinion, itself reached a controversial result and is hardly the last word on NY trust law. The Court also acknowledges that additional evidence may be proffered relating to a subsequent ratification of the conveyance of the mortgage, but for the purposes of a motion to dismiss, the homeowners have met their burden.

For those few REMIC geeks out there, it is worth quoting from the opinion at length (everyone else can stop reading now):

“The Notice of Default indicates that the original creditor is Deutsche Bank, as Trustee for Long Beach Mortgage Loan Trust 2004-6. The Trust is a New York common law trust created through a Pooling and Servicing Agreement (the “PSA”). Under the PSA, loans were purportedly pooled into a trust and converted into mortgage-backed securities. The PSA provides a closing date for the Trust of October 25, 2004. As set forth below, this was the  date on which all assets were required to be deposited into the Trust. The PSA provides that New York law governs the acquisition of mortgage assets for the Trust.

The Trust was formed as a REMIC trust. Under the REMIC provisions of the Internal Revenue Code (“IRC”) the closing date of the Trust is also the startup day for the Trust. The closing date/startup day is significant because all assets of the Trust were to be transferred to the Trust on or before the closing date to ensure that the Trust received its REMIC status. The IRC provides in pertinent part that:

“Except as provided in section 860G(d)(2), ‘if any  amount is contributed to a REMIC after the startup day, there is hereby imposed a tax for the taxable year of the REMIC in which the contribution is received equal to 100 percent of the amount of such contribution.”

26 U.S.C. § 860G(d)(1).

A trust’s ability to transact is restricted to the  actions authorized by its trust documents. The Saldivars allege that here, the Trust documents permit only one specific method of transfer to the Trust, set forth in § 2.01 of the PSA. Section 2.01 requires the Depositor to provide the Trustee with the original Mortgage Note, endorsed in blank or endorsed with the following: “Pay to the order of Deutsche Bank, as Trustee under the applicable agreement, without recourse.” All prior and intervening endorsements must show a complete chain of endorsement from the originator to the Trustee.

Under New York Estates Powers and Trusts Law § 7-2.1(c), property must be registered in the name of the trustee for a particular trust in order for transfer to the trustee to be effective. Trust property cannot be held with incomplete endorsements and assignments that do not indicate that the property is held in trust  by a trustee for a specific beneficiary trust.

The Saldivars allege that the Note was not transferred to the Trust until 2011, resulting in an invalid assignment of the Note to the Trust. The Saldivars allege that this defect means that Deutsche Bank and Chase are not valid Note Holders.

The Court agreed, at least while “accepting all well-pleaded facts as true.”” Read more…
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It takes a great deal of intellect and patience to opine a securitization opinion as it relates to the challenges of home-ownership and title protection. It appears Judge Isgur and his clerks took the time to research and understand the intricacies of the new paradigm shift in mortgage lending. At the turn of the century 13+ years ago, banks intentionally changed the mortgage loan methodology and intent, unbeknownst to the borrowers.

While securitization had been in play for nearly 30 years until the repeal of the Glass-Steagall Act, the banks had been under somewhat control. With Glass-Steagall protection eliminated during the Clinton era and Republican Congress regime – the banks went off the deep end and have yet to be reeled back in by Washington.

However, what has not changed – much to the fraudulent lending atmosphere dismay is STANDING. The Court in Saldivar addresses STANDING quite succinctly:

                              “Standing

     As a threshold matter, the Court must first address Chase and Deutsche Bank’s assertion that the Saldivars lack standing to challenge the validity of the assignment of their mortgage to the Trust.

A. Under New York Trust Law, is an ultra vires act void or merely voidable?

A third party generally lacks standing to challenge the validity of an assignment. Bank of
American Nat’l Assoc. v. Bassman FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct. 2012). A borrower may however raise a defense to an assignment, if that defense renders the assignment void. Id.

The parties agree that under New York Trust Law the relevant statute provides the following: “If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.”

Nearly EVERY trust related case is based on New York trust law and will be specifically defined in the trust Pooling and Servicing Agreements (PSA). As found in the Hawaii case Deutsche Bank v. Williams, Defendants may challenge the assignment of mortgage in order to defend the title. Courts are now confronted with facing the fact that these mortgage loans did NOT get assigned to the trusts and documents have been fabricated to hide the fact that the trusts are actually empty.

The banks fell apart BEFORE the majority of homeowners defaulted because the investors STOPPED buying securities  and started suing the banks for misrepresentation and fraud [see THE SUCKER PUNCH]. The homeowners had been promised that they could refinance into fixed loans if they maintained their credit scores and made their payments – it appears this was never meant to happen. All one needs to do is research the patents that the banks filed in the USTPO as they made their paradigm shift a few short years ago – and you’ll see that the intention was driven more toward leasehold than ownership.  “Land is the first economic hedge for mankind. Land is a place to begin and to try again. Land underlies all and land is limited. As Mark Twain once said, “Buy land. They’ve stopped making it.””

PATENTS – SUMMARY OF (one of )THE INVENTIONs

“In accordance with embodiments of the present invention, systems and methods are provided to structure land sale economics such that a leaseholder gains economic advantage while holding favorable land use rights as well as a right to acquire the underlying land at price that is likely to remain within the leaseholder’s economic reach.” See USPTO Patent – System and method for creating electronic real estate registration [click here for PDF] and its update 2012 version [click here for 2012 USTPO patent]. When the media refers to a “rental society” – they were not kidding:

Borrowers were sucked in and induced by rigged LIBOR rates to buy or refinance mortgages that never intended to pay off principal. As the years passed the patents progressed and the scheme of control to the elite becomes quite apparent…much like the takeover – “overthrow” of the Hawaiian Kingdom and the failed aspect of leasehold. Only now it is focused on America and these banks have gotten us in so financially deep in debt with their unregulated derivatives schemes that properties have become their new gold standard… apparently necessary for Wall Street to back up the banks.

The Court in Saldivar continues: 

 “N.Y. Est. Powers & Trusts Law § 7-2.4.The Bassman court holds that despite the plain language of § 7-2.4, under various circumstances a trustee’s ultra vires acts are voidable and not void. Bassman, 981 N.E.2d. at 9. The Bassman court cites New York cases that hold that beneficiaries of a trust can ratify a trustee’s ultra vires acts. See Gregan v. Buchanan, et al, 37 N.Y.S. 83, 85 (N.Y. Sup. Ct. 1896); see also Hine v. Huntington, et al. 103 N.Y.S. 535, 540 (N.Y. App. Div. 1907); Birnbaum v. Birnbaum, et al., 503 N.Y.S.2d 451 (N.Y. App. Div. 1986). The Bassman court holds that the ability to ratify a trustee’s ultra vires act is equivalent to finding that a trustee’s ultra vires act is merely voidable and not void.”

The Court defines the basis of the law it must follow with regard to the securitized trust:

“Under 28 U.S.C. § 1652, this Court has the duty to apply New York law in accordance with the controlling decision of the highest state court. Royal Bank of Canada v. Trentham Corp., 665 F.2d 515, 516 (5th Cir. 1981). While the Court finds no applicable New York Court of Appeals decision, a recent New York Supreme Court decision is factually similar to the case before the Court. See Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013). In Erobobo, defendants argued that plaintiff (a REMIC trust) was not the owner of the note because plaintiff obtained the note and mortgage after the trust had closed in violation of the terms of the PSA governing the trust, rendering plaintiff’s acquisition of the note void. Id. at *2. The Erobobo court held that under § 7-2.4, any conveyance in contravention of the PSA is void; this meant that acceptance of the note and mortgage by the trustee after the date the trust closed rendered the transfer
void. Id. at 8.”

NY Estate Powers & Trust Laws provide the Rule of Law:

“Based on the Erobobo decision and the plain language of N.Y. Est. Powers & Trusts Law § 7-2.4, the Court finds that under New York law, assignment of the Saldivars’ Note after the start up day is void ab initio.

[. . . ]

The Saldivars have pled facts sufficient to withstand dismissal on whether the transfer to the Trust was void ab initio. The Saldivars allege that assignment occurred in 2011—several years after the startup day. If this proves true, Chase may not be the owner of the Note.”

Does this give the investors (who were provided numerous warnings of the risk in the Prospectus) another bite of the apple – or will their lack of due diligence to inspect the trust documents, assignments and recordations (that it appears were never processed) cause a spotlight to shine on their finance directors, CEOs and agents? Did they know these loans were NEVER intended to be assigned?

Certainly, pension fund investments needed liquidity in order to make these risky certificate purchases. Was there a promise that the shadow banking and derivative sales would assist in keeping the cash flow certain?

It would appear that if the investors allowed the Trustee the ability to cure its “ultra vires act” that it could appear it was acting in concert with the trust perpetrating frauds upon the mortgagors, not to mention the IRS. The failure to assign the mortgage loans [and specifically the note which could be construed as materially altered under the ramification of securitization] to the trust would appear to have been intentional.

This opens up Pandora’s Box for both the lenders and investors because as the scheme unfolds – and it will… remember the patents (as well as human beings), the potential for conspiracy begins to surface – not only in the context of defrauding the homeowner (rigged LIBOR, etc.), but also who instructed and approved the use of these risky investments and why – will become a focal point. Investor money was pouring into the investment banks – and then it stopped dead in its tracks. There were trickling investments after January 2007 which are suspect at best. So, teaming up with the Trustees who had to know the mortgage loans were not assigned (because pursuant to the PSA it was the trustees’ job to inspect the loan documents) would become a nightmare for the individuals involved in these investment transactions.

It would be much wiser for the investors to sue the depositors and the trustees for the tax liabilities based on failure to assign the mortgage loans to the trusts. Because the peasants are sharpening their skills and wise to the land grab scheme. Maybe it’s time for the pension funds to reconstruct mortgage loans with the homeowners at reduced principals and reasonable interest rate for the damage this has caused – at least they might be able to replenish their pension funds from the monthly mortgage payments… which is more than they’ll ever see from the banks.

BTW – Don’t close down Guantanamo just yet – there may need to be a bit of interrogation of these pension trust fund financial managers, agents and CEOs first.

Special thanks to Deontos, Deb, Shelley, and the core defense teams for their research.