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The simple fact, however, is that the Court’s decision endangers only a special (and soon-to-be dwindling) class of lenders: Those too lazy, cheap, or sloppy to properly document a simple contractual assignment.
In 2006, New Century loaned 3,000 to plaintiff Yvanova, secured by a deed of trust on Yvanova’s Woodland Hills’ home.
Section 1123(b) (3) of the Bankruptcy Code facilitates the use of a liquidating trust for prompt administration of the estate by providing post-confirmation standing to an appointed representative of the estate to enforce claims and interests.
By establishing a liquidating trust pursuant to section 1123(b)(3) in a confirmed plan of reorganization or liquidation, a debtor can transfer causes of action and other assets to a trust, for future liquidation and distribution to the debtor’s creditors, and avoid delaying plan confirmation.
Liquidation Trust was established pursuant to the Plan and Confirmation Order for the benefit of unsecured creditors under the above-referenced plan.
Securitization of less than ideal conduit product has been with us since the birth of securitization, but reached its apogee in the RTC series, for non-performing loans, in the early to mid 1990s.
That transaction architecture is being revived, and it’s about time.
Based upon the self-evident principal that only the actual holder of a debt can foreclose on the collateral securing it, the Court, in its decision in employed simple logic in a very limited opinion that affords homeowners marginal relief from only the sloppiest of lenders.
Attorneys representing both borrowers and lenders were quick to respond to the Court’s decision, alternatively praising or decrying the effort as the foundation for a new war against secured lending.