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BOB MARLEY - The TRUST and TRUSTEE[1] April 8, 2013 With Yellow Highlights Throughout

BOB MARLEY - The TRUST and TRUSTEE[1] April 8, 2013 With Yellow Highlights Throughout

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Published by Tim Bryant
The role of the Trustee in a trust, and how the RMBS Trustee violates it's fiduciary duties to all parties through self-dealing and fraudulent concealment. Excellent paper by Bob Marley. Freely distributable.
The role of the Trustee in a trust, and how the RMBS Trustee violates it's fiduciary duties to all parties through self-dealing and fraudulent concealment. Excellent paper by Bob Marley. Freely distributable.

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Categories:Types, Business/Law
Published by: Tim Bryant on Sep 01, 2013
Copyright:Attribution Non-commercial

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09/10/2013

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!""
SECURITIZATION
THE TRUST AND TRUSTEE NEW YORK LAW AND MASSACHUSETTS LAWBy Robert P. Marley
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INTRODUCTIONCan a Trustee who fails to perform its duties to acquire the trust assets (note andmortgage) in the time proscribed under the trust instruments somehow ratify that failure whenthere exists a written, purported executed trust instrument, created under the Laws of New York?The answer is NO. Where a trust is expressed in the instrument creating the estate, all acts of trustees in contravention of the trust and not authorized by statute is void, and the only remedy at
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 The Illinois Appeals Court in
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committed an error of law when it held that theactions of the Trustee were voidable and not void.
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, 981 N.E.2d 1, 366 Ill. Dec. 936 (App. Ct. 2012) Each case cited in the opinion aredistinguishable from that matter and the matter of the failure to assign the note and mortgage andthe delivery thereof and this court made an egregious error. Notwithstanding, where all the intermediary parties to the trust instrument failed totransfer, assign, set over, convey and deliver the assets to each other and to the depositor, andthen to the trust, this failure destroys the chain of title. Basic law dictates that no purchaser after the break in the chain of title has any rights whatsoever.Indeed, the Trusts funded, certificates were created and sold on the securities market yet,were backed by nothing, because no bona fide sale, purchase, assignment or lawful conveyanceexecuted relative to the note and mortgage and no notice was given the Mortgagor; the note wasnot indorsed and negotiated, and the mortgage was not assigned in writing. Physical delivery of the assets is required; a prehistoric rule set forth in,
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on 
(1893) cited in 107 casesand never over-ruled.
 
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 137 N.Y. 215, 33 N.E. 143, (1893)There is no cognitive argument based on any tenet of law that could overcome thesemonumental failures related to the Trust assets.In researching NY EPTL 7-2.4 back to its conception, RPL §§ 100-105 part of the
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, the following carried through without change.Sections 100 and 101, L.1909, c. 52,
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, and set forth qualification for same, respectively. See EPTL 7-2.1.Section 105, L.1909, c. 52; amended L.1918, c. 403; L.1930, c. 808; L.1937, c. 141, § 1;L.1964, c. 681, § 7,
provid
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 NY Article 4-A - TRUST INDENTURES AND INTERESTS THEREIN § 127.Restrictions on Trustees1. No trustee shall accept a trust or act as trustee under a trust mortgage affecting any property in which he or any of the officers or directors of the trustee shall have,
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.In Many case you will find that the Trustee was lending money for loans it wouldultimately become the Trustee. In effect, the concealed lender created a conflict because there isa monetary interest vested in the Trustee. Notwithstanding, the trustee has concealed itsattachment to the assets of the Trust. See Marley Exhibit, 364 Revolving Credit Agreement,
 
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, was lending billions for loans it wouldultimately become the Trustee.The term "self-dealing" applies broadly to any act or transaction in which a trustee has a personal interest, which conflicts with the interests of the trust. By acting or engaging intransactions with self-interest as a potential motive, a trustee commits a breach of fiduciary duty,and, specifically, a breach of a trustee's duty to act with undivided loyalty toward the trust and its beneficiaries. See generally, Restatement Second, Trusts § 170.The general rule is that one acting in a fiduciary capacity for another has the burden of  proving that a transaction with himself was advantageous for the person for whom he was acting.
Ad 
on v 
.
Ad 
on 
, 60 Mass. App. Ct. 753, 806 N.E.2d 108 (2004), review denied, 442 Mass.1101, 809 N.E.2d 1060 (2004)One of the most fundamental duties of the trustee is to display throughout theadministration of the trust complete loyalty to the interests of the
1
trust; trustee must exclude allselfish interest and also, all consideration of the welfare of third persons. Trustee's duty of loyalty to interests of trust grows out of the fact that the trustee is a representative and out of thewell-known inability of human beings to serve two masters at once or to act satisfactorily withconflicting interests
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, 239 S.W.3d 77 (Ky. 2007).Trustees are generally prohibited from engaging in self-dealing transactions with the trustand from obtaining personal advantage from their dealings with trust property.
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.
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,708 N.W.2d 72 (Iowa 2006)
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 individually,
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, 65 Misc. 2d 501, 503, 318 N.Y.S.2d194, 196 (Sur. Ct.1971), or sells to the trust property he held as an individual,
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, 29 A.D. 182, 188-89, 51 N.Y.S. 910, 914-15 (1893). A trustee must act with the highest good faith toward the beneficiary and may not obtain any advantage over the beneficiary,
Allard v 
.
John 
on 
, 2006 ND243, 724 N.W.2d 331 (N.D. 2006).
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1
For the nonprofessional: cestui que (set-ee kee) one who possesses equitable rights in property; beneficiary/certificate holders.

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