The West Coast Foreclosure Show with Charles Marshall: Tenacity and Capacity

A terminated or unfunded trust lacks capacity to direct other parties to sue or be sued, or to sue or be sued in a representative capacity.   Trial courts typically fail to require supporting evidence of a trust’s capacity to direct foreclosure.  The alleged trust that likely was never funded and exists only on paper lacks any authority and yet the courts will proceed with the presumption that the trust in in compliance with all applicable laws- unless this issue is brought to the attention of the court.   A terminated trust lacks the capacity to pursue a derivative action. The issue in foreclosure therefore, is whether the trustee, as fiduciary for a trust that was previously terminated, has the power to direct a servicer to maintain a foreclosure action.   The Trust Agreement is subject to being considered null and void because it lacks the signature of someone with authority to proceed with foreclosure, and because of this lack of authorized signature the court should not assign the presumption of validity. Without evidence that a person’s signature is in fact their signature, the trust could be an imposter looking to foreclose without authority or capacity.