From your lips to his honor’s ears!!!
The Yvanova string of cases in California are based upon some vague notion of whether a void assignment (e.g., past the cutoff date) could be ratified by the trust, trustee or trust beneficiaries.
Firstly, the trust can only operate through a trustee. That is black letter law in every state. In REMIC Trusts the Trustee has no such power. If the Trustee attempted to do so it would not only be void, in accordance with the New York law allowing the creation of common law trusts, it would also be against the interests of the beneficiaries and for the interests of the Trustee, a claim that has been levied against U.S. Bank for example on multiple occasions.
Further, no trust exists under the laws of any state in which no assets are entrusted to the Trustee who is an active manager of actual assets. Since that description is accurate…
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1) Can an act not authorized by the governing trust documents be ratified?
2) Under what conditions?
3) By whom?
“No doctrine is better settled, both upon principle and authority, than this; that the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.” Owings v. Hull, 34 U.S. 607 (1835).
2) Only with full knowledge of all the material facts (this would have to include a veritable panoply of material facts, appraisals, origination, TILA, HOEPA, RESPA, etc., etc.).
3) The principal. Not the agent trustee. Not the servicer. Not the sponsor/depositor. The principal.
My view is the principal = certificateholders. But, in reading many PSAs, it appears certificateholders cannot ratify.
§ 11.03 of many PSAs is “Limitation on Rights of Certificateholders.” The typical language gives almost no rights to certificateholders. It doesn’t appear to give certificateholders a right to ratify an unauthorized act.
Glenn Russell fleshed this out well in the case of US Bank v. Bolling. The argument prevailed at trial level, but the MA COA reversed. The COA undercut the “choice of law provision” in the PSA at issue, stating that in MA even when there is a clear choice of law MA law will control. From that point they determined the assignment to be merely “voidable,” and not “void,” and Bolling lacked standing to raise the issues anyway.
The opinion is available on googlescholar. U.S. Bank, N.A. v. Bolling, 90 Mass.App. Ct.154 (2016). Briefs are available through the MA COA website.
In short is an unauthorized, late conveyance, into a trust a merely voidable, not void, act because it can be ratified? No. It can’t be ratified. Therefore the unauthorized act never crosses from being void to being merely voidable.