Attacking The Powerless And Deceptive “Limited Power Of Attorney” Documents In Foreclosure Litigation.
One of the first things I focus on in all my investigations is the alleged “servicer’s” authority granted by the “Trustees” of “XYZ Trusts” using “Limited Power of Attorney” documents. The following is an example of a deceptive, and arguably fraudulent, Limited Power of Attorney document publicly recorded and submitted into litigation proceedings by Caliber Home Loans on behalf of “U.S. Bank Trust, N.A. as Trustee for the LSF8 Master Participation Trust.” (Note: Same applies to LSF7, LSF9, LSF10, etc.)
The first paragraph in this LPOA contains standard language whereby the tasks being authorized by the Trustee to the servicer “[m]ay only be executed and delivered by such Attorney-In-Fact if such documents are required or permitted under the terms of the related servicing or management agreement[s.”]
Furthermore, “[n]o power is granted hereunder to take any action that would be either adverse to the interests of or be in the name of U.S. Bank Trust, National Association in its individual capacity.”
Now, let’s unpack this a bit.
First, U.S. Bank Trust National Association states it is granting authority “[n]ot in its individual capacity but solely as Trustee (“Trustee”).” However, the “Trust Agreement” for the LSF8 Master Participation Trust identifies U.S. Bank Trust, National Association’s capacities as both “acting in its individual capacity” and as “Owner Trustee.”
Not only does U.S. Bank Trust, N.A. deceptively state in the LPOA that it is granting authority “not in its individual capacity” (no such capacity), but it forbids Caliber Home Loans to take any action “in the name of U.S. Bank Trust, National Association in its individual capacity.” In other words, USBTNA agrees to execute the document with fake capacity and authority with the agreement that Caliber will indemnify USBTNA for all liabilities as a result.
Secondly, the fake authority is further predicated on other authorities permitted under the terms of the related servicing or management agreements, which are rarely produced or almost entirely redacted. In other words, the LPOA documents such as this do not stand on their own. The so-called “servicers” use these LPOA documents to imply that their servicing tasks are being granted by the trustees who universally deny any agency with the servicers, nor having any authority in any servicing functions to grant.
The following article by the American Bar Association relates to the securitization of student loans using Delaware trusts and the authorities of the trustees. I believe the same issues being referenced in this article apply to mortgage loan trusts.
“The issues being litigated in the NCSLT proceedings focus on whether certain actions of the residual interest holder in the Trusts were properly authorized.”
This may explain why U.S. Bank Trust, N.A. has been intentionally concealing its true role and capacity under the governing instrument as “Owner Trustee” acting in its “individual capacity.” In the NCSLT proceedings, the Court held “that the Trust’s governing agreements must be read as a whole, including incorporating provisions from other documents.” The same holds true for these LPOA documents. When challenging the “servicers'” authority in foreclosure actions, you cannot allow these LPOA documents to stand alone without demanding the production of all ancillary agreements in unredacted form. Based on my experience, the predicate documents either do not exist or they will completely discredit or contravene the servicers’ Limited Power of Attorney, proving them to be powerless.
Bill Paatalo
Private Investigator – OR PSID# 49411
Bill.bpia@gmail.com
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