If you’re being sued by any entity acting as a trustee, i.e. “US BANK
as trustee for the HP Series 2006-c Certificate Holders”, 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 “Capacity
Argument”, 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 “HSI 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, “The IXIX 2006-A Trust” into a straight google
search and see what comes up. Here are Step-By-Step instructions:

Finding Pooling And Servicing Agreements  (PSA’s)
For Securitized Mortgage Loans

The “Pooling and Servicing Agreement” 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
“Prospectus.”  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’t know the name of the pool that the
homeowner’s 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 “Search for Company Filings” under
“Filing & Forms (EDGAR).”    Under “General-Purpose Searches,” click
on “Companies & other filers.”
Then, in the “Enter your search information” box, type in “Ameriquest”
next to “Company name” and click on the “Find Companies” 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
“AMERIQUEST MORT SEC INC ASS BK PAS THR CERTS SER 2002 2.”  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 “Prospectus.”  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 knowthe name of the securitized
pool in advance (which is unlikely). Click on either “htm or text”
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 “Pooling and Servicing
Agreement” which
starts on page S-76.  Also, scroll down one more page, past the Table
of Contents, and
you will see a “Summary of Prospectus Supplement.”  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’ve found.
In my estimation, what this pro-se Defendant found is enough to blow
the lid off his foreclosure case…..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
“agent of record” of many of these trusts have changed many times, and
are very infrequently “named”, but list only an address and phone
number, (usually in New York). In several of the cases I’ve 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
“administrator” as listed in the PSA or any subsequent SEC filings.

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

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

Dawn M. Rapoport
Rapoport Law Group
1314 Las Olas Blvd. Suite 121
Fort Lauderdale, Fl  33301
954 712 7457