Você está na página 1de 4

ASSIGNEE LIABILITY CLAIMS AND DEFENSES ISSUE 1: SOUNDVIEW MORTGAGE LOAN TRUST 2005-OPT4 should be registered as a separate legal

l entity with Deutsche Bank acting as TRUSTEE. Auditor did not find any registration and this must be established to determine the proper party to assert claims and defenses against. ISSUE 2: The loan and securitization audit shows clear connections between the broker and the funding lender Option One through broker contractual agreements, training manuals, incentive payments(YSP) based on Rate Sheets provided to broker. ISSUE 3: The conduit lender Option One incentivized the broker to produce such detrimental loan terms as excess interest over par, and prepayment penalties. These detrimental terms for the borrower were then monetized through securitization, by creating tranches of the securitization for excess interest and prepayment penalties. Option One sold these benefits to Greenwich(the securitizer) thereby both profit from this fraud on the borrower. ISSUE 4: Option One colluded with the broker to process the loan as stated income, using false information when the borrower provided the true information, and Greenwich knew it was purchasing fraudulent stated income loans. Greenwich performed no due diligence because it wanted to accept and resell securities for profit to unsuspecting investors. ISSUE 5: Option One retains servicing rights to manage the loan and default process and in this case rejected payments the borrower tried to make. Greenwich gave Option One broad authorities to act on its behalf, therefore must accept the consequences of its choice to look the other way as SOUNDVIEW TRUST loans at inception went from 8095 to only 2,196 left in MAY 2011. ISSUE 6: Monthly reports show Greenwich knew of massive losses, exhausted overcollaterization, and more than 30% of all loans left are in default. Greenwich demanded that Ninety (90) loans be repurchased by Option One. Additional claims may be pending. ISSUE 7: Monthly reports show a small fraction of loan modifications were offered and completed. Public revelations in every major news media and through various regulatory investigations make it clear fraud and abuse upon borrowers has taken place, yet Greenwich stood by and did nothing to replace the SERVICER or the TRUSTEE. The only conclusion one could draw is that they support the default management, fraud affidavits, and failure to act in good faith.

ISSUE 8: The facts set forth of collusion, knowledge of originator fraud, knowledge of originator/servicing fraud and intentional interference with the borrowers performance on the contract, aiding and abetting fraud of Option One for unjust enrichment of Greenwich, and Greenwich ordered the high interest loans with prepayment penalties so it could enrich itself as they were the beneficiary of excess interest and prepayment penalty tranches. The FTC Rule has the effect of subjecting a seller (and some related creditors and their assignees) in a consumer credit transaction and any assignee of the creditor to all claims and defenses which the debtor in the transaction could assert against the seller of the goods. Liability under the FTC Rule is limited to the amounts paid by a debtor on the Contract, and the holder of the Contract may also be unable to collect amounts still due under the Contract. Most of the Contracts in a trust fund will be subject to the requirements of the FTC Rule. Accordingly, the trust fund, as holder of the Contracts, will be subject to any claims or defenses. If an obligor is successful in asserting the claim or defense, and if the Seller had or should have had knowledge of the claim or defense, the master servicer will have the right to require the Seller to repurchase the Contract because of breach of its Seller's representation and warranty that no claims or defenses exist that would affect the obligor's obligation to make the required payments under the Contract. The Seller would then have the right to require the originating dealer to repurchase the Contract from it and might also have the right to recover from the dealer any losses suffered by the Seller with respect to which the dealer would have been primarily liable to the obligor.

LEGAL TITLE OWNERSHIP OF PROPERTY Section 2.08. TITLE TO TRUST PROPERTY. Except with respect to the Mortgage Loans, which will be assigned to the Indenture Trustee pursuant to the Indenture, legal title to the Owner Trust Estate shall be vested at all times in the Trust as a separate legal entity except where applicable law in any jurisdiction requires title to any part of the Owner Trust Estate to be vested in a trustee or trustees. Statutory Trusts - Under the Act, however, to the extent provided in the governing instrument, a beneficiary shall be entitled to direct the trustee of a statutory Delaware statutory trust without the risk of personal liability for the debts of the trust or the risk that the creditors of the beneficiary could reach the assets of the trust itself. The Act specifically provides that a statutory trust is a separate legal entity and may carry on any lawful business or activity, whether or not conducted for profit, including holding or otherwise taking title to property. ISSUE 1: Is SOUNDVIEW MORTGAGE LOAN TRUST a registered legal entity? Auditor could not find it registered in Delaware or New York the two most common jurisdictions, in IRS publication 938 which list all REMICS, and the EIN number used is not SOUNDVIEW, the 1098 end of year states the tax beneficiary is OPTION ONE. If SOUNDVIEW TRUST is a registered legal entity, where is it registered and what contract is it operating under relating to Deutsche Bank as Trustee. It is crucial that the legal registration is established, the jurisdiction, and legal business structure. ISSUE 2: For a Defendant to properly defend against an attempt to foreclose on his or her property, that Defendant must know exactly what type of legal entity they are up against. Defenses and claims may vary depending on whether the entity is a trust, a corporation, an LLC or limited partnership, or an individual. Likewise rights under the law vary depending on how that entity is organized. ISSUE 3: Deutsche Bank claims to have rights as Trustee of SOUNDVIEW Mortgage Loan Trust 2005-OPT4, but has presented no contract that shows that right, or any document that shows that this SOUNDVIEW trust owns the loan. ISSUE 4: Deutsche Bank presents a NOTE it claims is the original NOTE, but that by itself is not sufficient to establish that it had the NOTE at the time of

initiating the foreclosure action, under what circumstances it obtained the NOTE, and certainty as to legal ownership of the NOTE. It is imperative that some record or testimony is obtained to establish chain of physical custody of the NOTE, AND ALL OTHER LOAN DOCUMENTS. ISSUE 5: The NOTE itself does not set forth an entire legal loan transaction, which consists of early disclosures, loan applications, good faith estimates, preliminary and final copies of all loan documents including the MORTGAGE. Without the entire loan file, the borrower cant establish a proper defense based on the entire transaction. Likewise, Deutsche Bank cant claim a foreclosure is proper based on one document of a transaction that involves several documents.

Você também pode gostar