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Foreclosure-Gate: Alabama Judge Accepts New York Trust Theory

The ruling in favor of the borrower endorses an argument we have made since last year on this blog, that the pooling and servicing agreement stipulated a specific set of transfers be undertaken to convey the borrower note (the IOU) to the securitization trust within a specified time frame. New York trust law was chosen to govern the trusts precisely because it is unforgiving; any act not specifically stipulated by the governing documents is deemed to be a “void act” and has no legal force. So if a the parties to a securitization failed to convey a note to the trust within the stipulated timetable, retroactive fixes don’t work. In this case, the note had been endorsed by the originator, Encore, but not by the later parties in the securitization chain as required in the pooling and servicing agreement. You may recall that an Alabama judge in Jefferson County had ruled that borrower arguments based on the requirements of the pooling and servicing agreement were inoperative in an ejectment action. Adam Levitin and we had both argued that the ruling was narrow and would have limited applicability even in Alabama, because it was contesting an ejectment, not a foreclosure (Paul Jackson had argued the converse, that the ruling was fatal to the New York trust theory). This decision validates this view and the general viability of arguments based on the New York trust law, which was chosen by the overwhelming majority of real estate securitization trusts to govern the trust (note not the other aspects of the deal).

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