HOW TO FIND YOUR POOLING AND SERVICING AGREEMENT
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It may be very valuable to your case for you to have a certified copy of your Pooling and Servicing Agreement (“PSA”), your Prospectus and your Prospectus Supplement. The bank worked hard to hide it from you, and their attorney will probably stonewall you in discovery and argue every reason in the world why it either doesn’t exist, is irrelevant or why the dog ate it, in which case it’s still available, but not very pretty. Once you receive your PSA, you have to analyze it. A PSA is typically between 150 – 700 pages long. It takes us about one full day to completely analyze a PSA.
Finding a PSA and its related prospectus takes skill. You can do this yourself if you have the time and investigative skills to figure it out. Or, you can take the easy way out and do what we do – hire Mario Kenny to find it. He typically charges $850 for that service. If you are going to hire Mario Kenny, skip this and go to the bottom of the page to read something he wrote. Otherwise, here is how to find your PSA:
If the securitization of your mortgage loan was public, these documents must be filed with the Securities and Exchange Commission (SEC). They are available to the public at http://www.sec.gov (EDGAR ONLINE)
Get your copy of the promissory note and the deed of trust. Look at these documents and find the name of the original lender and the date the mortgage loan was made (the date you signed it). Write that information down.
You may get lucky and find your PSA the easy way – by placing in your internet search box the name of your original lender followed by “8-K”, or a variant, such as “8k” or “8K” and hitting the search button. It would look something like this “Wells Fargo 8-k”. You should get hits with the names of securitized pools (trusts) frequently in a form similar to this – “X Mortgage Security Asset Backed Pass-Through Certificates Series 200Y-Z”, where “X” is the name of the original lender, “Y” is the year you got your loan, and “Z” is the month you got your loan (“Z” may be up to four months after you got your loan as the trust closing date must be funded within 90 days of the trust’s “cut-off” date – not your closing date.)
If you get too many hits, narrow it down a bit by adding to your search terms different configurations of the year and month that the trust closed. The earliest the trust could have closed would be the year and month you got your loan. If you got your loan in January, 2006, you would write it like this: “2006-1”; or try this: “2006 1.” Because the trust could close up to 4 months later, also try it like this: “2006-2” or “2006 2” and “2006-3” or “2006 3” and “2006-4” or “2006 4.” The whole format would look something like this: “Wells Fargo 8-k 2006-2.” If the loan was taken out in December, 2006, you will search not only 2006, but 2007 as well.
If that’s not successful, go to http://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 the name of your original lender next to “Company name” and click on the “Find Companies” button. Companies’ names are often made up of more than one word, so you may have to try your search using the full name, as well as only part of the name. Try it every way you must to get a “hit.” Several companies may have similar names, so watch out for that.
You will see a long list of the names of securitized pools of loans. You will be looking for all the names that are similar to the name of your original lender. Once you find them, your next must narrow down the search to the right time period for your loan. If the trust “cut-off” date fell before your loan was signed, you’ve got the wrong trust. Because of this, you cannot rely simply on the “Y” and “Z” dates. You need to do a search within the PSA for the “cut-off” date to make sure you have the right trust. Your lender may have securitized several pools of loans within a short time frame, so the first one you find that seems like a match may not be correct.
Once you find a match – or matches – write down their names and the document numbers associated with them (called a CIK). Then click on the CIK. Click on that number. There will be a list of documents filed with the SEC that are related to this pool of loans. Search as you scroll down, looking for a document titled “Prospectus” and “Pooling and Servicing Agreement.” If you find them, save them to your computer and also bookmark the page you found them on. If you don’t see either of these, go to the Table of Contents and search again.
Once you find your PSA, you then need to contact the SEC and request a certified copy of it (along with a certified copy of your Prospectus and Prospectus Supplement (if a supplement exists). You will need a certified copy because that certification makes it admissible into evidence if the document is relevant.
Finding a Pooling And Servicing Agreement (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 http://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 http://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 know
the 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.
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 actuallydissolved 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.
We are a small group of homeowner/advocates, we are not attorneys. While fighting for our own homes we have developed the skills necessary to look up and find the trust for most loans that were originated between 2001 and 2009. Many banks did bundle and securitize loans during this same time period and filed documents with the SEC pertaining to the loan pools and Special Purpose Vehicle (SPV). Therefore, most loans have a Pooling and Servicing Agreement (PSA) that governs the deal. Whether or not the PSA was enforced regarding your specific loan is an entirely different issue.
Our group works diligently to find your trust and when we do we will send you the printed PSA. Sometimes we can get the PSA certified by the regulator, thus enabling the document to be admissable as evidence in a court of law. We have seen many lawyers use these PSA’s to establish that the Plaintiff does not have standing to sue a homeowner. The PSA is a very important part of your case that the lawyer can use to help defend your home. In short, we offer our services to those who wish to find their PSA, Prospectus and Prospectus Supplement.
Call us now… we can go to work for you today so that you and your family can have peace of mind tonight!
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