Not So Innocent: Transfer of Servicing Rights

When we receive the “new servicer” letter maybe in our QWR we should request the name of the loan boarding person (it should be readily available on the software platform) for our records. It could prove invaluable at some later date.

Livinglies's Weblog

Fundamental questions:

  • How can a “trust” change trustees without consent of the Trustor and/or beneficiaries? Is this statement true: The position of being a Trustee for a REMIC Trust is a salable, transferrable commodity that can take place without the knowledge or consent of the Trustor or the Beneficiaries? Hence were all those changes in Trustees void or invalid and who has standing to complain about it? If there is no Trustor and there are no beneficiaries it isn’t a Trust so no consent from the trust is required. That still leaves open the question “if not the trust, then who?”
  • How can a “trust” change servicers without the consent of the Trustor and/or beneficiaries? Is this statement true: Servicers can decide amongst themselves as to who will be designated the “servicer” on performing and non-performing loans without the consent and knowledge of the creditor. The corollary is that homeowners…

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3 thoughts on “Not So Innocent: Transfer of Servicing Rights

  1. As usual, Garfield has no idea what he’s talking about. the foreclosing party does not have to own the note to foreclose.

    The Comment to § 3–203 states, “[t]he right to enforce an instrument and ownership of the instrument are two different concepts.” THE HOLDER OF A NOTE IS “ENTITLED TO ENFORCE THE INSTRUMENT EVEN [IF IT IS] NOT THE OWNER OF THE INSTRUMENT OR IS IN WRONGFUL POSSESSION OF THE INSTRUMENT.” Id. at § 3–301. See also In re Veal, 450 B.R. 897, 909 (B.A.P. 9th Cir.2011) (“Article 3 does not necessarily equate the proper person to be paid with the person who owns the negotiable instrument.”); SMS Financial, LLC v. ABCO Homes, Inc., 167 F.3d 235, 238–39 (5th Cir.1999) (noting that a party’s status as a holder and its attendant right to enforce an instrument is separate from the party’s status as the owner of that instrument); In re Walker, 466 B.R. 271, 280 (Bankr.E.D.Pa.2012) (“[T]he borrower’s obligation is to pay the person entitled to enforce the note (who need not be the ‘owner’ of the note).”); In re Simmerman, 463 B.R. 47, 60 (Bankr.S.D.Ohio 2011) (noting that “the holder of the note may differ from the owner of the note”). As the court noted in In re Veal, “[u]nder established rules, the maker [of a note] should be indifferent as to who owns or has an interest in the note so long as it does not affect the maker’s ability to make payments on the note.” 450 B.R. at 912.

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