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Can a mortgage loan be assigned to a securitized trust after the closing date of the trust?

Austell, GA |

My mortgage loan which was securitized in Series 2004 WWF1 11/01/04 with CLOSING DATE of 11/08/2004

Attorney Answers 5

Posted

I took a quick look at your trust's pooling and servicing agreement, and it appears to indicate that Assignments can be recorded after a borrower default, but that they needed to be EXECUTED AND IN THE CUSTODIAN'S POSSESSION prior to the trust's close. In other words, the trust was probably required to hold legal title to the property prior to the closing date. Most of these securitization trusts have the same kinds of provisions because they are REMICs and can run afoul of the Revenue Code and run the risk of losing their REMIC status by transferring property in and out after the closing date.

Long story short, if the transfer method violated the pooling and servicing agreement, and the agreement has not subsequently been modified to allow for such a practice, then the late transfer is probably void. This could prevent the trust from foreclosing on your home altogether.

You should speak with a lawyer.

William J. Smith
SMITH LAW, LLC
P.O. Box 468328
Atlanta, GA 31146
T: 678.691.5676
F: 770.674.1122
E: bjsmith3414@gmail.com

Business. Consumer Protection. Employment. False Claims. Landlord-Tenant. Wrongful Foreclosure.

Nothing herein should be relied upon as legal advice.

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Posted

Avvo Email - Rated Professionals. Expert Advice.
The trust can be reopened, so yes. If you are trying to stop a foreclosure,
talk to a bankruptcy attorney about getting you back on track.

www.atl-law.com

The DiGiulio Law Firm, LLC. Phone: 888-540-4529 Website: www.atl-law.com Atlanta, Marietta, Lawrencevile, Duluth, Alpharetta, Buckhead The above answer is for general information purposes and is offered as a service to the public. Nothing on this or associated pages, documents, comments, answers, reviews or other communications, including the above post, should be taken as legal advice for any individual case or situation or relied upon as a substitute for engaging legal counsel, nor does it constitute advertising or a solicitation. Viewing the general information here, including your receipt or transmission of information hereof does not alone create or constitute an attorney-client relationship or ensure confidentiality. Please contact 770-309-9551 for additional questions or to schedule for your free phone consultation. If this question or answer pertains to bankruptcy, please be advised that we are a federal debt relief agency. One of our areas of practice is to help people file for bankruptcy relief and protection under the U.S. Bankruptcy Code.

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Posted

Possibly,, depending on the terms of the trust and also the possibility it was reopened.

Since you posted this under foreclosure I am gathering you will lose your home in January. That's a legal emergency and you need to see my office (404-768-3509) or some attorney ASAP to determine (1) if you have actual defenses, and (2) if bankruptcy will save your home.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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Yes, the terms of the trust may provide for such assignments or the trust could have been reopened. That being said, if this is regarding a pending foreclosure, you should immediately consult with a bankruptcy or foreclosure attorney to review the underlying facts and circumstances.

** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. For more information, you can reach my office at: ww.EGoldLaw.com or by calling: 818-279-2737.

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As the others have stated, there is a good possibility that they can. If you are facing foreclosure and want to stop it, determining whether they can or not may take longer than you have. If the foreclosure is coming up, you may want to go ahead and file a bankruptcy to prevent it, as letting them go through the motions on the possibility that a foreclosure would be invalid is a risky endeavor. If it turns out they had the right, you would have no recourse after the foreclosure had already been conducted.

The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP hmgrmg@yahoo.com 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation

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