Saturday, July 6, 2013

Is Master Servicer Allowed to Gamble with WaMu Pass-Through Certificates Trust Funds in Series 2005-AR 6?


IS THE MASTER SERVICER ALLOWED TO GAMBLE WITH TRUST FUNDS?

 

Language from the Prospectus for WaMu Mortgage Pass-Through Certificates Series 2005-AR6 contains interesting language leading to a new twist on the securitization process relative to the collateral notes. Page S-21 (Risk Factor) of the Prospectus contains a a stipulation and admission that the Trustee will not take physical possession of mortgage notes and mortgage loans related to the mortgage loans owned by the Trust.  Neither will the Trustee conduct any independent review or examination of the related mortgage files. Furthermore the mortgage notes will not be endorsed to the Trust and no assignment of the mortgages to the Trust will be prepared. The mortgage notes and mortgages will not be stamped or otherwise marked to reflect the assignment to Washington Mutual Mortgage Securities Corporation and then to the Trust. If a subsequent purchaser or creditor were able to take physical possession of the mortgage notes and mortgages without knowledge of that assignment, the interests of the Trust in the mortgage notes and mortgages could be defeated. 

Excerpted from:   “Risk Factor”  page S-21 of the Prospectus:


Possession by a Subsequent Purchaser or Creditor of the Mortgage Notes and Mortgages Could Defeat the Interests of the Trust in the Mortgage Notes and Mortgages






The trustee will not have physical possession of the mortgage notes and mortgages related to the mortgage loans owned by the Trust. In addition, the trustee will not conduct any independent review or examination of the related mortgage files. Instead, to facilitate servicing and reduce administrative costs, Washington Mutual Bank fsb, a wholly-owned subsidiary of Washington Mutual Bank, the servicer of the mortgage loans, will retain possession of and will review the mortgage notes and mortgages as custodian for the Trust and financing statements will be filed evidencing the Trust's interest in the mortgage loans. The mortgage notes will not be endorsed to the Trust and no assignment of the mortgages to the Trust will be prepared. Furthermore, the mortgage notes and mortgages will not be stamped or otherwise marked to reflect the assignment to Washington Mutual Mortgage Securities Corp. and then to the Trust. If a subsequent purchaser or creditor were able to take physical possession of the mortgage notes and mortgages without knowledge of that assignment, the interests of the Trust in the mortgage notes and mortgages could be defeated. In that event, distributions to certificateholders may be adversely affected.


In flat contradiction to this admission, the securitization participants state the following in the Pooling & Servicing Agreement (PSA) as follows:







e adversely affected.



Section 2.04. Conveyance of Mortgage Pool Assets; Security Interest.

Concurrently with the execution and delivery hereof, the Company does hereby irrevocably sell, transfer, assign, set over and otherwise convey to the Trust, without recourse, all the Company’s right, title and interest in and to the Mortgage Pool Assets (such transfer and assignment by the Company to be referred to herein as the “Conveyance”).

It is the express intent of the parties hereto that the Conveyance of the Mortgage Pool Assets to the Trust by the Company as provided in this Section 2.04 be, and be construed as, an absolute sale of the Mortgage Pool Assets. It is, further, not the intention of the parties that such Conveyance be deemed the grant of a security interest in the Mortgage Pool Assets by the Company to the Trust to secure a debt or other obligation of the Company. However, in the event that, notwithstanding the intent of the parties, the Mortgage Pool Assets are held to be the property of the Company, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Pool Assets, then:(a) this Agreement shall constitute a security agreement;(b) the conveyance provided for in this Section 2.04 shall be deemed to be a grant by the Company to the Trust of, and the Company hereby grants to the Trust, to secure all of the Company’s obligations hereunder, a security interest in all of the Company’s right, title, and interest, whether now owned or hereafter acquired, in and to:

(I) The Mortgage Pool Assets;

(II) All accounts, chattel paper, deposit accounts, documents, general intangibles, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas, and other minerals, consisting of, arising from, or relating to, any of the foregoing; and


(III) All proceeds of the foregoing.


The Company shall file such financing statements, and the Company and the Trustee acting on behalf of the Trust at the direction of the Company shall, to the extent consistent with this Agreement, take such other actions as may be necessary to ensure that, if this Agreement were found to create a security interest in the Mortgage Pool Assets, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement. In connection herewith, the Trust shall have all of the rights and remedies of a secured party and creditor under the Uniform Commercial Code as in force in the relevant jurisdiction.


In the event that a pleading is filed in a court of competent jurisdiction asserting that this Agreement creates a security interest in the Mortgage Pool Assets, the Trustee on behalf of the Trust shall take actual possession of the Mortgage Pool Assets or, at the Company's option, the Trustee on behalf of the Trust shall be provided an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee to the effect that such security interest is a perfected security interest of first priority while the Mortgage Pool Assets are in the possession of the Company or its affiliates.

Per the Prospectus:

THE TRUST

The issuer of the certificates, the WaMu Mortgage Pass-Through Certificates Series 2005-AR6 Trust (the " Trust "), will be a statutory trust formed under the laws of the State of Delaware pursuant to a trust agreement between Washington Mutual Mortgage Securities Corp., as depositor, and Deutsche Bank Trust Company Delaware, as Delaware trustee. Pursuant to the pooling agreement among Washington Mutual Mortgage Securities Corp., as depositor and master servicer, Deutsche Bank National Trust Company, as trustee, and Deutsche Bank Trust Company Delaware, as Delaware trustee, a pool of mortgage loans, as described in this prospectus supplement, will be sold to the Trust on April 26, 2005 (the " Closing Date "). The mortgage notes will not be endorsed to the Trust and no assignment of the mortgages to the Trust will be prepared. Washington Mutual Bank fsb, a wholly-owned subsidiary of Washington Mutual Bank (known prior to April 4, 2005, as Washington Mutual Bank, FA), the servicer of the mortgage loans, will retain possession of and will review the mortgage notes and mortgages as custodian for the Trust and financing statements will be filed evidencing the Trust's interest in the mortgage loans. The mortgage pool will be the primary asset of the Trust. The Trust will own the right to receive all payments of principal and interest on the mortgage loans due after April 1, 2005 (the " Cut-Off Date "). In exchange for the mortgage loans and other property, the trustee will authenticate and deliver the certificates to Washington Mutual Mortgage Securities Corp. A schedule to the pooling agreement will include information about each mortgage loan, including:

•  the applicable loan group;

• the outstanding principal balance as of the close of business on the Cut-Off Date;

• the term of the mortgage loan; and

the mortgage interest rate as of the close of business on the Cut-Off Date and information about how that mortgage interest rate adjusts. 


The Trust will also contain other property, including:

insurance policies related to individual mortgage loans, if applicable;

any property that Washington Mutual Mortgage Securities Corp. acquires after the Cut-Off Date as a result of foreclosure or threatened foreclosure of a mortgage loan;

• the rights of the Trust under the yield maintenance agreements; and

amounts held in the Certificate Account (as described on page 30 of the accompanying prospectus). 


The pooling agreement permits Washington Mutual Mortgage Securities Corp., as the master servicer, to place funds that would otherwise be held in the Certificate Account into an Investment Account and invest them in Eligible Investments for its own benefit, before those funds are to be distributed to certificateholders.

S-30
 Is the Master Servicer allowed to gamble with trust funds?

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