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 Kenney to find it. He typically charges $850.00 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.
I am a homeowner and a consumer advocate – but I am not an attorney. I have developed a skill to look up and find the trust for “most” pools of mortgages that were originated between 2001 and 2009, whereas not all loans are found to have filings, most banks do file their loans with the SEC in a Special purpose vehicle (SPV), therefore most loans may have a Pooling and Servicing agreement, that is where I go to work for any homeowner. I work hard to find your trust and I will send you the printed PSA, sometimes I can get the pooling and Servicing Agreement certified by the regulator, thus making the disclosure an admissible document of evidence, in any court. I have seen many lawyers use these PSA’s I find to establish that the Plaintiff doesn’t have standing to sue a homeowner. Sometimes these lawyers may use it to describe how the Note and its related transactions were pooled into a Special Purpose Vehicle. I have found that the PSA is a very important part of a homeowners defense and the lawyer can use this information to help homeowners, reorganize their lives and the stay longer in their home. I find PSA’s, their Prospectus and Prospectus Supplement.
Call me if you need my service to help you to find your pooling and servicing agreement.
786 274 0527
PSA…ARE YOU PSA LITERATE? APRIL CHARNEY
If you are an attorney trying to help people save their homes, you had better be PSA literate or you won’t even begin to scratch the surface of all you can do to save their homes. This is an open letter to all attorneys who aren’t PSA literate but show up in court to protect their client’s homes.
First off, what is a PSA? After the original loans are pooled and sold, a trust hires a servicer to service the loans and make distributions to investors. The agreement between depositor and the trust and the truste and the servicer is called the Pooling and Servicing Agreement (PSA).
According to UCC § 3-301 a “person entitled to enforce” the promissory note, if negotiable, is limited to:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 3-309 or section 3-418(d).
A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
Although “holder” is not defined in UCC § 3-301, it is defined in § 1-201 for our purposes to mean a person in possession of a negotiable note payable to bearer or to the person in possession of the note.
So we now know who can enforce the obligation to pay a debt evidenced by a negotiable note. We can debate whether a note is negotiable or not, but I won’t make that debate here.
Under § 1-302 persons can agree “otherwise” that where an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, that the transferee is granted a special right to enforce an “unqualified” indorsement by the transferor, but the code does not “create” negotiation until the indorsement is actually made.
So, that section allows a transferee to enforce a note without a qualifying endorsement only when the note is transferred for value. Then, under § 1-302 (a) the effect of provisions of the UCC may be varied by agreement. This provision includes the right and ability of persons to vary everything described above by agreement.
This is where you MUST get into the PSA. You cannot avoid it. You can get the judges to this point. I did it in an email. Show your judge this post.
If you can’t find the PSA for your case, use the PSA next door that you can find on at www.secinfo.com. The provisions of the PSA that concern transfer of loans (and servicing, good faith and almost everything else) are fairly boilerplate and so PSAs are fairly interchangeable for many purposes. You have to get the PSA and the mortgage loan purchase agreement and the hearsay bogus electronic list of loans before the court. You have to educate your judge about the lack of credibility or effect of the lifeless list of loans as the Uniform Electronic Transactions Act specifically exempts Residential Mortgage-Backed Securities from its application. Also, you have to get your judge to understand that the plaintiff has given up the power to accept the transfer of a note in default and under the conditions presented to the court (out of time, no delivery receipts, etc). Without the PSA you cannot do this.
Additionally the PSA becomes rich when you look at § 1-302 (b) which says that the obligations of good faith, diligence, reasonableness and care prescribed by the code may not be disclaimed by agreement, but may be enhanced or modified by an agreement which determine the standards by which the performance of the obligations of good faith, diligence reasonableness and care are to be measured. These agreed to standards of good faith, etc. are enforceable under the UCC if the standards are “not manifestly unreasonable.”
The PSA also has impact on when or what acts have to occur under the UCC because § 1-302 (c) allows parties to vary the “effect of other provisions” of the UCC by agreement.
Through the PSA, it is clear that the plaintiff cannot take an interest of any kind in the loan by way of an “A to D” assignment of a mortgage and certainly cannot take an interest in the note in this fashion.
Without the PSA and the limitations set up in it “by agreement of the parties”, there is no avoiding the mortgage following the note and where the UCC gives over the power to enforce the note, so goes the power to foreclose on the mortgage.
So, arguing that the Trustee could only sue on the note and not foreclose is not correct analysis without the PSA. Likewise, you will not defeat the equitable interest “effective as of” assignment arguments without the PSA and the layering of the laws that control these securities (true sales required) and REMIC (no defaulted or nonconforming loans and must be timely bankruptcy remote transfers) and NY trust law and UCC law (as to no ultra vires acts allowed by trustee and no unaffixed allonges, etc.).
The PSA is part of the admissible evidence that the court MUST have under the exacting provisions of the summary judgment rule if the court is to accept any plaintiff affidavit or assignment.
If you have been successful in your cases thus far without the PSA, then you have far to go with your litigation model. It is not just you that has “the more considerable task of proving that New York law applies to this trust and that the PSA does not allow the plaintiff to be a “nonholder in possession with the rights of a holder.”
And I am not impressed by the argument “This is clearly something that most foreclosure defense lawyers are not prepared to do.” Get over that quick or get out of this work! Ask yourself, are you PSA adverse? If your answer is yes, please get out of this line of work. Please.
I am not worried about the minds of the Circuit Court Judges unless and until we provide them with the education they deserve and which is necessary to result in good decisions in these cases.
It is correct that the PSA does not allow the Trustee to foreclose on the Note. But you only get there after looking at the PSA in the context of who has the power to foreclose under applicable law.
It is not correct that the Trustee has the power or right to sue on the note and PSA literacy makes this abundantly clear.
Are you PSA literate? If not, don’t expect your judge to be. But if you want to become literate, a good place to start is by attending Max Gardner’s Mortgage Servicing and Securitization Seminar.
by April Carrie Charney