William A. Roper, Jr.
Reply with quote #1
One very common foreclosure mill
dirty trick used to help conceal the fraud by the servicer and foreclosure mill is the purposeful redaction of the MERS Mortgage Identification Number (MIN) from the copy of the mortgage, deed of trust or other mortgage security instrument furnished to the court in a judicial foreclosure or U.S. Bankruptcy Court proceeding. These redactions are inherently fraudulent and deceitful, but are routinely explained away and justified as minor paperwork issues. In fact, despite the fact that the MIN actually appears on the original of the mortgage, deed of trust or other security instrument filed of record in the county land records, the foreclosure mills will tell the court that this redaction (which is almost always accomplished using white out rather than blacking out the number to make it more like that the alteration goes unnoticed) is somehow for the borrower's protection. That is, the foreclosure mill is defrauding and deciving the court "out of an abundance of caution" for the borrower's privacy. HOGWASH. Of course, this is utter rubbish. Disclosure of the MIN does absolutely nothing to expose a borrower's personal information to the public and the MIN is already publicly know from its recording in the public land records, which are almost universally more readily publicly accessible than the public court records. Moreover, if the redaction was anything other than dishonest, it would be accomplished by blacking out the MIN and expressly calling the attention of the Court and the borrower to its omission. The real purpose is to minimize the likelihood that the borrower or borrower's attorney will use the MIN to look up the borrower's mortgage information using the online MERS MIN Lookup tool. See:
MERS Servicer ID Lookup" http://ssgoldstar.websitetoolbox.com/post?id=5346473 For this reason, the very first things that the borrower ought to do in ANY case in which the mortgagee is shown to be MERS is (a) inspection of the mortgage to ascertain whether the MIN has been redacted, (b) IF there has been a redaction, to obtain a certified copy of the real mortgage from the county records, (c) careful scrutiny of the pleadings to ascertain whether the plaintiff has certified to the court by allegation or sworn averment that the mortgage filed is a true and accurate copy of the original, and (d) lookup of the servicer and the mortgage investor (when available) using the MERS Servicer ID Lookup. * But the borrower should always AVOID taking the plaintiff immediately to school about what has been learned. The foreclosure mill usually begins its fraud on the court with its very first pleading -- the complaint -- and will usually continue lying and fabricating new evidence until the first indication that the defendant/debtor/borrower has actually noticed and perceived the fraud. Where the MIN has been redacted and the mortgage ottherwise altered and the plaintiff has NOT certified to the court that the copy of the mortgage is a true and exact copy of the original, the first step usually ought to be to make evidentiary objections that the copy pled hasn't been properly authenticated. Let the plaintiff and/or creditor swear to the authenticity of the document before you begin to point out the alterations to the court. The omission of the MIN is a very small alteration and by itself is very unlikely to engender any great sympathy for teh borrower from the court. Only in conjuction with the other more serious fraud is it likely that this omission would be a means of obtaining a dismissal and/or sanctions. Also, simply because the borrower KNOW that the mortgage has been altered, this is NOT a reason to rush and put a valid authenticated copy of the mortgage into evidence. Since the plaintiff very often fails to properly authenticate and introduce evidence into the record, it is generally BETTER practice to wait and see what evidentiary defects presist through the summary judgment hearing or trial. That is, if the plaintiff fails to put an admissible copy of the mortgage into evidence, this could defeat the plaintiff's case, so it is better to leave such a glaring problem for the court rather than to focus on the MIN redaction, which can always be brought to the court's attention later. In fact, the redaction can be used to impeach the crediblility of the plaintiff's witness when the witness falsely swears that the altered copy of the mortgage is an exact copy of the original. NOTE: I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE.
Reply with quote #2
The real purpose is to minimize the likelihood that the borrower or borrower's attorney will use the MIN to look up the borrower's mortgage information using the online MERS MIN Lookup tool. After looking up a MIN and finding a DIFFERENT entity as the owner/investor of the property, how can this be used in court? How could you authenticate the document to use it as evidence if it would benefit the defendant?
William A. Roper, Jr.
Reply with quote #3
After looking up a MIN and finding a DIFFERENT entity as the owner/investor of the property, how can this be used in court? How could you authenticate the document to use it as evidence if it would benefit the defendant? Bill: I think that the answer would depend upon the other precise facts in the case and the stage of the litigation. Bear in mind that at the summary judgment phase, it is enough to simply create a dispute as to some material fact and the court is usually required under the summary judgment standard to view the evidence in the light most favorable to the non-movant and to resolve all doubt in favor of the non-movant. I think that one could probably have one or more reliable people use the look-up tool and print out the results, attaching the results to an affidavit. One could also ask the court to take judicial notice of the results, though this is mildly problematic, since the servicer could probably have MERS turn off the indication as to the identity of the mortgage investor. It would be better if this could be used in conjunction with other admissible facts to create a dispute. Of course, one could also use discovery to further explore and elaborate on the evidence suggested by the discrepancy. Generally, it would be better to get the servicer and foreclosure mill lying under oath about this before taking the opposition to school about what is actually KNOWN. Having a good expert witness would certainly help. But NOT the sort of self-procleaimed experts championed by a couple of recent posts. Later in the litigation, at trial, the information could be used to confront and impeach the plaintiff's witness.
Reply with quote #4
The real reason your min has been removed is the number was duplicated and used on another loan. Chances are the mill representing the bank is tryin to foreclose on two different homes Registered under the same min.