Vous êtes sur la page 1sur 5

The complete Trustee powers from a standard Pooling and Servicing agreement:

Section 8.01 Duties of the Trustee. The Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set forth in this
greement. !n case an Event of Default has occurred and remains uncured, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement and use
the same degree of care and s!ill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person"s own affairs.
The Trustee, upon receipt of all resolutions certificates statements opinions reports
documents orders or other instruments #items for discovery$ furnished to the Trustee
that are specifically re"uired to be furnished pursuant to any provision of this greement
shall e#amine them to determine whether they are in the form re"uired by this
greement. The Trustee shall not be responsible for the accuracy or content of any
resolution certificate statement opinion report document order or other
instrument.#Thus the Trustee cannot vouch for any allegation or fact or instruction
issued with regard to delin%uency default or foreclosure$
$o provision of this greement shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct.
#This is why the Trustee can and should be named as a potential defendant in a
demand letter and defendant in a lawsuit$
%nless an Event of Default known to the Trustee has occurred and is continuing:
&a' the duties and obligations of the Trustee shall be determined solely by the e#press
provisions of this greement, the Trustee shall not be liable e#cept for the performance of
the duties and obligations specifically set forth in this greement, no implied covenants
or obligations shall be read into this greement against the Trustee, and the Trustee may
conclusively rely as to the truth of the statements and the correctness of the
opinions expressed
therein upon any certificates or opinions furnished to the Trustee and conforming
on their face to the re%uirements of this Agreement which it believed in good faith to
be genuine and to have been duly e#ecuted by the proper authorities respecting any
matters arising hereunder(
&b' the Trustee shall not be liable for an error of (udgment made in good faith by a
)esponsible *fficer or )esponsible *fficers of the Trustee unless it is finally proven
that the Trustee was negligent in ascertaining the pertinent facts+ and
&c' the Trustee shall not be liable with respect to any action taken, suffered, or omitted to
be taken by it in good faith in accordance with the direction of the ,olders of
-ertificates evidencing not less than ./0 of the
1oting )ights of -ertificates relating to the time method and place of conducting
any proceeding for any remedy available to the Trustee, or e#ercising any trust or power
conferred upon the Trustee under this greement.#authority re%uired from certificate
holders 2 the real holders in due course$
Section 8.0. -ertain 3atters Affecting the Trustee and the -ustodians. E#cept as
otherwise provided in Section ).*+:
&a' the Trustee and the -ustodians #note the T4* parties distinguished5 Trustees
and -ustodians$ may re"uest and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officers Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties #items for discovery$ and
neither the Trustee nor the ,ustodians shall have responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties(#this means that nobody from
Trustee has authority to sign a sworn affidavit or give sworn testimony in court
since they need !now nothing in their own personal !nowledge can rely on the
statements of others &hearsay' and are not bound by the truth or falsity of any fact.$
&b' the Trustee and the ,ustodians may consult with counsel financial advisers or
accountants and the advice of any such counsel financial advisers or accountants
and any *pinion of -ounsel shall be full and complete authori6ation and protection
in respect of any action ta!en or suffered or omitted by it hereunder in good faith
and in accordance with such *pinion of -ounsel( #more items for discovery$
&c' neither the Trustee nor the -ustodians shall be liable for any action ta!en
suffered or omitted by it in good faith and believed by it to be authori6ed or within
the discretion or rights or powers conferred upon it by this Agreement(#so they are
admitting that if there is any brea! in the chain of title any defect in the securities
negotiability of the instruments or any payment received that occurred between any
party on behalf of the borrower to any party on behalf of the investor they will not
and cannot vouch for authenticity of the alleged default but they can 7say8 it. This
is the difference between a letter and a sworn document or testimony$
&d' the Trustee shall not be bound to ma!e any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, re"uest,
consent, order, approval, bond or other paper or document, unless re"uested in writing to
do so by the -olders of ,ertificates evidencing not less than ./0 of the 1oting 2ights
allocated to each ,lass of ,ertificates(#Discovery item5 did the Trustee ma!e any
investigation9 :f yes what did they find out9 :f ;es why did they do so despite the
clear wording that says they didn"t have any obligation to investigate and obviously
were not expected to perform one9 :f no then are they not admitting they don"t
!now the status of the loan ownership of the note enforceability of the mortgage or
existence of the obligation9$
&e' the Trustee may e#ecute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agents
accountants or attorneys appointed with due care by it hereunder( provided, further,
the Trustee shall not be responsible for any act or omission of any ,ustodian(#Discovery5
who were the agents accountants or attorneys appointed9 4ho is responsible for
the negligence fraud or malpractice of the agents accountants or attorneys9 :f there
was such an appointment by this Trustee how was it done9 4here is the document
that shows that9 ,ow do we !now the lawyer in court is actually representing the
Trustee the :nvestors the servicer or someone else9$
&f' the Trustee shall not be re"uired to risk or e#pend its own funds or otherwise incur any
financial liability in the performance of any of its duties or in the e#ercise of any of its
rights or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or ade"uate indemnity against such risk or liability is not
assured to it(#so how did the Trustee get its authority to proceed9 4ho gave it the
authroity9 4ho is paying the Trustee its agents accountants and attorneys9 4here
are they getting the money for these payments9 :s there any undisclosed third party
involved &-hamperty and maintenance 2 yes it still exists'$
&g' the Trustee shall not be liable for any loss on any investment of funds pursuant to this
greement(
&h' unless a )esponsible *fficer of the Trustee has actual !nowledge of the
occurrence of an <vent of Default the Trustee shall not be deemed to have
!nowledge of an <vent of Default until a )esponsible *fficer of the Trustee shall
have received written notice thereof+ and
&i' the Trustee shall be under no obligation to exercise any of the trusts rights
or powers vested in it by this Agreement or to institute conductor defend any
litigation hereunder or in relation hereto at the re%uest order or direction of
any of the -ertificate holders pursuant to this Agreement unless such
-ertificate holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs expenses and
liabilities which may be incurred therein or thereby. #T,=S since the Trustee
is ><1<) deemed to have actual !nowledge because the Trustee is re%uired
*>?; to rely upon the representations of others without doing any
investigation on its own it may never in its own name bring a foreclosure
action or order the foreclosure sale of any property. The certificate holders
unless they have received information from a source other than the Trustee
&hearsay' are getting their information from the Trustee. Thus they are in no
better position than the Trustee to !now anything. This brings to the
forefront the most basic rule of evidence5 a witness must ta!e an oath have
perceived something by their own senses recall what they saw and be able to
communicate it. The real parties are the investors and the borrowers.
<veryone else is (ust a middleman and none of the middlemen are ta!ing
responsibility for !nowing anything doing anything or vouching for
anything. *nly a party who can offer admissible evidence may sue for any
relief. :n no case we have seen so far has any party ordered a notice of sale or
filed a foreclosure suit with the ability to offer admissible evidence. They are
using conventional thin!ing to get around the rules of evidence. And they
don"t want anyone in court who really !nows because if they tell the truth
the testimony will be that the parties in court have all been paid in full
received fees that were never disclsoed to the borrower or the investor and
that they have no idea whether the ivnestor has been partially or completely
paid through reserves colalterali6ation insurance credit default swaps or
government bailouts. $
Section 8.0@ Trustee >ot ?iable for -ertificates or 3ortgage ?oans.
The recitals contained herein and in the -ertificates shall be ta!en as the statements
of the Depositor and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this greement or of
the ,ertificates or of any 3ortgage 4oan or related document. The Trustee shall not be
accountable for the use or application by the Depositor the Securities Administrator
or a Servicer of any funds paid to the Depositor the Securities Administrator or a
Servicer in respect of the 3ortgage ?oans or deposited in or withdrawn from any
-ollection Account or the Distribution Account by the Depositor the Securities
Administrator or a Servicer.#This is your authority for saying these people need to
be brought to court to account for the money that was paid by the borrower and
third parties and to account for the alleged assignemnts or negotiation of notes
whose terms were changed by the very act of pooling and then collaterali6ing within
the Special Aurpose 1ehicle$
The Trustee shall have no responsibility for filing or recording any financing or
continuation statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or lien granted to it hereunder
&unless the Trustee shall have become the successor servicer'.#Trustee cannot even
vouch that the security still exists ever existed or whether it is still enforceable$
Section 8.0B Trustee 3ay *wn -ertificates. The Trustee in its individual or any other
capacity may become the owner or pledgee of ,ertificates with the same rights as it
would have if it were not the Trustee.#Discovery item5 did this happen9 4here are
these certificates now9$
Section 8.0/ Trustee"s Cees and <xpenses. s compensation for its activities under this
greement, the Trustee shall be paid its fee by the Securities dministrator from the
Securities dministrator5s own funds pursuant to a separate agreement. #Discovery
:tem$ The Trustee and any director, officer, employee, or agent of the Trustee shall be
indemnified by the Trust 6und against any loss, liability, or e#pense &including reasonable
attorney5s fees' resulting from any error in any tax or information return prepared by
any Servicer or incurred in connection with any claim or legal action relating to &a' this
greement, &b' the ,ertificates or the :nterest )ate Swap Agreement, or &c' the
performance of any of the Trustee5s duties under this greement &including any
unreimbursed out7of7pocket costs resulting from a servicing transfer', the ,ertificates or
the !nterest 2ate Swap greement, other than any loss, liability, or e#pense &i' resulting
from any breach of any Servicer5s obligations in connection with this greement for
which the related Servicer has performed its obligation to indemnify the Trustee pursuant
to Section 8.*/, &ii' resulting from any breach of any )esponsible Aarty"s obligations in
connection with this Agreement for which the related )esponsible Aarty has
performed its obligations to indemnify the Trustee pursuant to Section ..*9&:' or &iii'
incurred because of willful misconduct, bad faith, or negligence in the performance of
any of the Trustee5s duties under this greement. This indemnity shall survive the
termination of this greement or the resignation or removal of the Trustee under this
greement. ;ithout limiting the foregoing, e#cept as otherwise agreed upon in writing
by the Depositor and the Trustee, and e#cept for any e#pense, disbursement, or advance
arising from the Trustee5s negligence, bad faith, or willful misconduct, the Trust 6und
shall pay or reimburse the Trustee, for all reasonable e#penses, disbursements, and
advances incurred or made by the Trustee in accordance with this greement with respect
to: