Herein consider where the purchaser (assumed to mean trustee) must indemnify and hold seller harmless against any and all claims, losses, damages, Under the statutory agreements are the understanding for discovery of the collaborate Books and Records Our expert testimony encourages the plaintiffs request of the court to compell discovery where the matter is entitled to the preservation and production of all books and records.
We cite where it may be necessary however, to motion the court for Institutional Constructive Trust. This is for the purpose to have entered into court the request for intrinsic evidence.
Our expert witness testimony asserts that from and after the date of alleged sale of the Mortgage Loans to the Purchaser, all rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with a Mortgage Loan shall be held by Seller in trust for the benefit of Purchaser as the owner of the Mortgage Loans and the Seller shall retain record title to the related Mortgages for the sole purpose of facilitating the servicing and the supervision of the servicing of the Mortgage Loans.
Furthermore , in testimony we assert, the sale of each Mortgage Loan shall be reflected on Seller’s balance sheet and other financial statements as a sale of assets by Seller.
It is common knowledge to secondary markets insiders that the seller shall be responsible for production of discovery , as he shall maintain, a complete set of books and records for each Mortgage Loan which shall be clearly marked to reflect the ownership of each Mortgage Loan by Purchaser in Seller’s computer system. Herein particular, the Seller shall maintain in its possession, and make available for inspection by the court or its designee, the documents it was to delivered to the Purchaser withn said time frame or upon demand. This is critical by FDIC regulatory guidlines, for exmaple to evidence compliance with all federal, state and local laws, rules and regulations
The trust scheme demands the Seller shall maintain with respect to each Mortgage Loan and shall make available for inspection during Seller’s normal business hours and upon reasonable notice by any Purchaser or its designee the related Servicing File during the time the Purchaser retains ownership of a Mortgage Loan and thereafter in accordance with applicable laws and regulations.
Its also important to note, the Delivery of Mortgage Loan Documents on or before the date which is agreed upon by the Purchaser and the Seller in the related Purchase Price and Terms Letter, the Seller shall deliver to Purchaser or the Custodian, as directed by Purchaser, the Mortgage Loan Documents as required by Exhibit H hereto for each Mortgage Loan in the Mortgage Loan Package. We assert that on or prior to the related Closing Date, the Custodian shall certify its receipt of all such Mortgage Loan Documents required to be delivered pursuant to the Custodial Agreement, as evidenced by the Initial Certification of the Custodian in the form annexed to the Custodial Agreement. Purchaser shall pay all fees and expenses of the Custodian
The articles for the indenture are specific for most part as a Sellers defenses cannot refute their obligation to forward to the trust as a Purchaser or its designee, all original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with their Trust Agreement, ( normally held within two (2) weeks of their execution.) Note that such is provided, however, that each Seller shall give the Purchaser or its designee, (1) certified true copy of any such document (2) submitted for recordation within 14 days of its execution. They shall further provide the original of any document submitted for recordation or a copy of such document certified by the appropriate public recording office alleging it to be a true and complete copy of the original. The requirment for trust is within 180 days of its submission for recordation.
Now consider , whre in the event Seller cannot deliver the original of such documents submitted for recording (example – due to a delay by the recording office in the applicable jurisdiction), the Seller shall be held to deliver a recording receipt of such recording office .
Hence if such recording receipt is not available, it is mandatory for an Officer’s Certificate from Seller to affirm such documents were accepted for recording purposes. This in so much as all document’s are to be delivered to the Trust, meaning the Purchaser and / or the appointed designee promptly so upon its receipt from the related recording office.
What you want to consider is where often the counter claims will cite delays or loss documents arguing the articles are lost – that to have been delivered to it by Seller. The argument fails as all documents must be delivered as soon as practicable under a receipt of a written request from Seller (albeit at no expense to Seller).
For counsel, your inquiry or request may consider we prepare suggestions for a demand for discovery. Our staff and outside accounting professionals can answer your questions and can be available to testify as required.
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