Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Anon
I have a question that I need some help with, I'm hoping the forum can give me some insight and knowledge.....Thanks in advance.

If there is an agent involved at origination of the loan, for the lender on the mortgage and note, and the loan was endorsed in blank by the agent of the original lender some time after closing. 

The original lender was never a member of MERS but the agent was, now comes an frabricated assignment of the mortgage some 8 years after origination from MERS as nominee for the original lender, but the original agent for the lender went out of business 3 years prior to the assignment.

Is this at all possible to be a nominee of the original lender? Can there be a agent for an agent relationship?

Because everything that im reading is that MERS claims to have some bogus kind of agency relationship with its members, successors and assigns, but the original lender was never a member of MERS its agent was, but the agent is long gone.    
Quote 0 0
William A. Roper, Jr.
Quote:
Anon said:
The original lender was never a member of MERS but the agent was, now comes an frabricated assignment of the mortgage some 8 years after origination from MERS as nominee for the original lender, but the original agent for the lender went out of business 3 years prior to the assignment.

Is this at all possible to be a nominee of the original lender? Can there be a agent for an agent relationship?


Anon:

This situation was previously discussed in several previous message threads.  But you add another interesting twist if the originating Lender was NOT an MERS member and an "MERS As Original Mortgagee" (MOM) instrument was used.

I want to initially caution you that I am NOT AN ATTORNEY and THIS IS NOT LEGAL ADVICE.  The discussion below is merely lay 1st Amendment critical discussion between fellow pro se litigants and interested foreclosure defense activists.

First, I would point out that your alleged promissory note and alleged mortgage were, at best, if properly executed and binding unilateral undertakings, NOT bi-lateral contracts in the traditional sense.  Note that YOUR signature as borrower appears on these instruments, but neither the Lender NOR MERS as mortgagee signs.

Five hundred years of English and American common law teaches us that one party cannot by a unilateral grant in an instrument create an agency agreement between two other entities which do not by their agreement bind themselves to such an agency.  Let us put this another way.  IF the Lender has an agency agreement with MERS by a pre-existing contractual agreement or power of attorney, then MERS might be the Lender's agent.  But YOU cannot MAKE the MERS the Lenders' agent by your signature on the instrument.

In most instances, MERS and the Lender have such a pre-exisitng relationship, though this is rarely proven by admissible evidence.  Invariably, the plaintiff seeks to persuade the court that the mortgage creates such an agency.  But this is utter NONSENSE, though a few trial judges are either so corrupt or so incompetent that they buy into this silliness.

But you have a bit of a PROOF PROBLEM unless you can overcome this in discovery.  How do you PROVE that the original Lender was NOT an MERS member?  Happily, if you plead your case correctly, you will NOT need to prove this negative.  It is really the plaintiff's burden to prove the existence of the agency relationship.  But you should consult an attorney to help you make and sustain this evidentiary argument.

The second issue is one discussed elsewhere within other threads.  I will briefly explain the argument, but will then simply link the other related Forum threads. 

Under the laws of agency, an agent typically has only such rights as the principal itself can exercise.  If you were to grant to me a power of attorney, that power of attorney would typically be valid only during your lifetime and within your lifetime only while you retain the rights over your own affairs.

If, for example, someone had you declared incompetent and a guardian was appointed to manage your affairs, the power of attorney you granted me would then usually cease to be effective.  Since YOU could no longer directly manage your affairs, I could not act on your behalf using the power of attorney.

Similarly, your death would typically terminate my authority under such a power of attorney.  Your court sanctioned executor or administrator, holder of letters testamentary, would have the power over your estate assets.  And the power of attorney you granted me would then cease to have effect.

There are some mechanism to get around this authority and control issue, but these would use trusts rather than a POA to vest authority over certain assets in a trustee rather than in an agent.

Your intuition that an agent cannot lawfully act on behalf of a corporate principal after the principal has ceased its corporate existence is correct.

When a corporation surrenders its charter in its place of domicile it is for all practical purposes legally DEAD.  This is NOT the case when the corporation merely declares bankruptcy and enters receivorship.  But when a corporation is in bankruptcy its existence and management may very well be more akin to that of a person under guardianship.  The bankruptcy may displace the POA, but for a somewhat different reason.  NOT because the bankrutpcy terminates the corporation's existence, but rather because management and control of the assets of the bankrupt company is vested in a bankruptcy trustee rather than in the corporation's traditional management through a board of directors.

You would need to check the bankruptcy filings, the bankruptcy law and probably consult a lawyer as to the details of a particular insovent entity.

The issue of MERS' relationship with the "successors and assigns" of the original Lender is also discussed in other posts.  MERS has sought to twist and distort the meaning of those words to conform to its bizarre criminal enterprise.

Traditionally, inclusion of the words successors and assigns was necessary to allow an interest in real property to be devised or aliened, which otherwise wasn't permissible.  That is it AUTHORIZES MERS to act as the nominee of the successors and assigns, IF the successors and assigns (a) enter into such an agency relationship with MERS and (b) if the interest is actually conveyed to such successors and assigns.

The idea that this language would convey the interest in the mortgage to such unnamed successors and assigns is simply absurd.

Take a look at the discussion in my previous posts within these message threads:
"In Re Martinez and MERS v. Martinez" (02/16/11 at 08:28 PM)
http://ssgoldstar.websitetoolbox.com/post?id=5096845

"What if the originating lender no longer exists." (01/24/11 at 12:29 AM)
http://ssgoldstar.websitetoolbox.com/post?id=5061652
Also, educate yourself about how MERS works.  In particular, read:
"MERS Terms and Consitions"
http://www.scribd.com/doc/44807159/MERS-Terms-and-Conditions-2008

"MERSCorp Rules of Membership"
http://www.scribd.com/doc/44806946/MERS-Rules-of-Membership-June-2009

MERS Appellants Brief in the MERS v. Nebraska Dept. of Banking Case
http://www.scribd.com/doc/40664635/MERS-Appellants-Brief-MERS-v-Nebraska-Dept-of-Banking-Filed-15-Oct-2004

Quote 0 0
Anon
William
Thank you for your thorough responce, I would like to know how can you find out the history of MERS members.  I know they have a list of current members, and in that list is the agent that got disolved(shut down) by its parent co., but is still active, go figure. 

 "Happily, if you plead your case correctly, you will NOT need to prove this negative.  It is really the plaintiff's burden to prove the existence of the agency relationship"

Would it be at all possible for you to expand on this quote...

Quote 0 0
William A. Roper, Jr.
Quote:
"Happily, if you plead your case correctly, you will NOT need to prove this negative.  It is really the plaintiff's burden to prove the existence of the agency relationship"

Would it be at all possible for you to expand on this quote...


Precisely how you plead and prove your defensive case is going to be heavily dependant upon whether you are in a judicial or non-judicial foreclosure state, whether the proceeding is a state court action or being litigated in a Federal Bankruptcy Court setting or even a Federal District Court (in the case of some non-judicial state TRO actions), as well as the allegations set forth in the mortgage investor/plaintiff's pleadings (when litigating in a judicial foreclosure state).

These would need to be further informed by the unique facts of your case, as well as the statutes and cases for your jurisdiction.

Amongst the conspicuous errors or frauds often perpetrated by mortgage servicers and the corrupt foreclosure mill law firms they employ are forgery of a false assignment which purports to assign not only the mortgage or deed of trust, but also the note, from MERS to the foreclosing entity.

Since MERS NEVER OWNS THE NOTE, this can be demonstrated to be a fraudulent representation.  Similarly, through discovery, you ought to be able to show that the assignment has no economic reality whatsoever.

The plaintiff is going to be trying to demonstrate that the assignment is actually valid and effective.  To the extent that they claim that MERS is the nominee or agent for the Lender, it would seem to me that the mortgage investor bears the burden of proof as to this point.  That is, you shouldn't have to prove that the agency didn't exist.  The plaintiff needs to prove that it DID.

In some states, there are express laws that REQUIRE that conveyances under a power of attorney be supported by a recorded POA.

MERS very often tries to dance around this.  They simultaneously seek to argue that MERS is the principal in the original mortgage transaction as mortgagee, while arguing that MERS is also the agent or nominee of the Lender.

Professor Christopher Peterson has exposed the incongruency of this absurd argument in his scholarly articles about MERS.  How can MERS be both principal and agent?

When it suits MERS' purposes, they argue that MERS is the principal, as when they argued MERS' entitlement to be shown in the records as mortgagee and when they argue to the court that no power of attorney (POA) or other power need be shown by evidence.

But if MERS is really the principal, then there must be a bi-furcation of the note and the mortgage and the note may, in fact, be unsecured.

So MERS then argues that it is actually merely the nominee for the Lender, Lenders successors and assigns and asserts that somehow the specification of "successors and assigns" means that this agency is somehow passes along automatically without any further conveyance needed, which is totally absurd.

MERS is a criminal enterprise which talks out of both sides of its mouth and which routinely makes mutually exclusive arguments about its rights and the character of its business in different courts.  Moreover, MERS has delegated the authority to executed bald fabrications of instruments to its members and allows these members to make false and perjurous statements both in the forged instruments and in court cases on its behalf.  Even though MERS KNOWS that courts are being furnished with blatantly false information in its name, MERS takes no affirmative steps to correct the record.

The trick to exposing and defeating MERS is to gather its various inconsistent arguments and to turn these against this corrupt enterprise!
Quote 0 0
Write a reply...