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
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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.
The DiGiulio Law Firm, LLC.
Atlanta, Marietta, Lawrencevile, Duluth, Alpharetta, Buckhead
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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.
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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.
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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.
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