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The short answer is YES. If a party initiates foreclosure proceedings based upon ownership of the loan, note and mortgage by a REMIC Trust, that ownership is based upon the express provisions of a trust instrument. And that trust instrument is the Pooling and Servicing Agreement (PSA). If that instrument is created under the laws of the State of New York, New York law expressly states that anything that violates the trust provisions is void.
So if US Bank, for example, says it brings the foreclosure by virtue of US Bank being the Trustee for a named Trust, then right there is an item for discovery —- is US bank really the trustee? Does the trust own the loan? If the answer is no, then there should be no foreclosure. Nothing could be more relevant.
So the theory…
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