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.
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William A. Roper, Jr.
In 2007, the Florida Court of Appeals for the Second District handed down its decision in the case Mortgage Electronic Registration Systems v. Azize.  Take a look at the express language from the decision:
"In count one of the two-count complaint, MERS alleged that it was the owner of the note and that the note had been lost or destroyed after MERS acquired it.  Specifically, MERS alleged that because the note was in its possession when it was lost, MERS was entitled to enforce the note.  The complaint also explained that the loss of the note was not due to a transfer by MERS or a lawful seizure.  The complaint did not allege the circumstances by which MERS came into possession of the note, specifying only that MERS was the owner and holder of the note.  MERS asked the trial court to reestablish the lost note.

In count two, MERS sought foreclosure of the mortgage based on the default by Azize.  MERS alleged that it owned the note and mortgage and that the note was secured by the mortgage.

. . .

MERS alleged that it is the owner and holder of the note and mortgage, and that allegation has not been contested by responsive pleading.  Assuming that the complaint properly states a cause of action to reestablish the note and that MERS can show prima facie proof of such allegations, MERS would have standing as the owner and holder of the note and mortgage to proceed with the foreclosure.  [emphasis added]"

Mortgage Electronic Registration Systems v. Azize, Case No. 2D05-4544 , COURT OF APPEAL OF FLORIDA, SECOND DISTRICT, 965 So. 2d 151; 2007 Fla. App. LEXIS 2418; 32 Fla. L. Weekly D 546, February 21, 2007, Opinion Filed ,  Released for Publication October 23, 2007.
http://scholar.google.com/scholar_case?case=6009463802418245406

Now compare the language of this decision and MERS' allegations, with MERS' allegations within its MERS Appellant's Brief in the case MERS v. Nebraska Dept. of Banking, a matter determined by the Nebraska Supreme Court in 2005:
"MERS does not take applications for, underwrite or negotiate mortgage loans.  MERS does not make or originate mortgage loans to consumers. MERS does not extend any credit to consumers.  MERS does not service mortgage loans.  MERS does not sell mortgage loans.  Most importantly, MERS is not an investor who acquires mortgage loans on the secondary market.

. . .

Similarly, MERS is not an investor who acquires or negotiates or arranges for the acquisition of mortgage loans on the secondary market or a bank or servicing company which acquires the servicing rights to mortgage loans for fee income.

. . .  MERS has no financial or other interest in whether or not a mortgage loan is repaid.

. . .

MERS is not the owner of the promissory note secured by the mortgage and has no rights to the payments made by the debtor on such promissory note."
Appellant's Brief from MERS v. Nebraska Dept. of Banking, No. S-04-786, 270 Neb. 529; 704 N.W.2d 784; 2005 Neb. LEXIS 177 (Neb. 2005).
http://www.scribd.com/doc/40664635/MERS-Appellants-Brief-MERS-v-Nebraska-Dept-of-Banking-Filed-15-Oct-2004

The Nebraska decision is at:


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It is noteworthy that in the Azize case, the decision which was the subject of the appeal was a sua sponte ruling by the Florida Circuit Court and that Azize had NOT defended the case nor entered ANY materials into defensive evidence.  Moreover, Azize didn't appear to defend the appeal and no Appellee's Brief was even filed.  Although April C. Charney filed an Amicus Curiae brief on behalf of Jacksonville Area Legal Aid, Inc., the Aziz case was essentially won on appeal BY DEFAULT.

But Azize was also won on the basis of FALSE EVIDENCE presented to the Florida Circuit Court.  MERS NEVER OWNED THE AZIZE NOTE, BUT FALSELY REPRESENTED TO THE FLORIDA COURT THAT IT DID.
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William A. Roper, Jr.
Other State Appellate Court Decisions Citing Nebraska

"In reality, the Bank was unable to suggest an injury MERS suffered because MERS did not suffer any injury when the Saunderses failed to make payments on their mortgage.  See Mortg. Elec. Registration Sys., Inc. v. Neb. Dep't of Banking & Fin., 704 N.W.2d 784, 788 (Neb. 2005) (stating that "MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money")."
Bellistri v. Ocwen Loan Servicing, LLC, No. ED91369, COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION FIVE, 284 S.W.3d 619; 2009 Mo. App. LEXIS 219, March 3, 2009, Filed, Transfer denied by Bellistri v. Ocwen Loan Servicing, L.L.C., 2009 Mo. LEXIS 138 (Mo., June 30, 2009).  Related proceeding at Mortgage Elec. Registration Sys. v. Bellistri, 2010 U.S. Dist. LEXIS 67753 (E.D. Mo., July 1, 2010).
http://scholar.google.com/scholar_case?case=15478233660359926605

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"The Nebraska Supreme Court found in favor of MERS, noting that "MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money." 270 Neb. at 535, 704 N.W.2d 784. The Nebraska court reached this conclusion based on the submissions by counsel for MERS that
"MERS does not take applications, underwrite loans, make decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through membership fees charged to its members. MERS does not receive compensation from consumers." 270 Neb. at 534, 704 N.W.2d 784."
Landmark Nat'l Bank v. Kesler, No. 98,489, SUPREME COURT OF KANSAS, 289 Kan. 528; 216 P.3d 158; 2009 Kan. LEXIS 834, August 28, 2009, Opinion Filed.
http://scholar.google.com/scholar_case?case=7208887003475335230

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But NO ONE got the Appellant's Brief in Nebraska into evidence in the Azize case and the Court reached its decision based upon FALSE PLEADINGS and FALSE EVIDENCE presented by MERS in the Circuit Court!

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William A. Roper, Jr.

I thought that some might benefit from a reading of Judge Walt Logan's decision in the original consolidated dismissal of twenty (20) cases in Pinellas County, Florida, in 2005.  This was the decision which gave rise to the MERS v. Azize appeal:


http://www.scribd.com/doc/59072246/MERS-v-Azize-Judge-Walt-Logans-Order-Dismissing-Pinellas-18-Aug-2005


The decision gives some very interesting early insight into MERS.
 
When the MS Fraud site was much younger and the case offerings in the Legal Lounge more sparse, it was much easier to locate this insightful case.
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Mr. Roper,

Don't forget the MERS v. Revorado opinion.  Judge Gordon from the trial court called MERS a sham.  However, Florida's third District Court of Appeals ruled that:

 "the problem arises from the difficulty of attempting to shoehorn a modern innovative instrument of commerce into nomenclature and legal categories which stem essentially from the medieval English land law." 

and 

"Because, however, it is apparent – and we so hold – that no substantive rights, obligations or  defenses are affected by the use of the MERS device, there is no reason why mere form should overcome the salutary substance of permitting the use of this commercially effective means of business."  

btw, the Revorado case when it was before Judge Gordon was styled MERS v. Cabrera (http://msfraud.org/LAW/Lounge/MERS%20is%20a%20SHAM.pdf)

The hearing transcripts are also posted at the Lounge:


Here is a link to MERS v. Revorado:
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James
I thought the issue of MERS foreclosing in its name was already decided. It put out a memo that members should no longer do that. Correct? Or does it still differ in individual states?

Does any of this affect or relate to MERS assignments of mortgage?
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William A. Roper, Jr.
Quote:
James said:
I thought the issue of MERS foreclosing in its name was already decided. It put out a memo that members should no longer do that. Correct? Or does it still differ in individual states?

Does any of this affect or relate to MERS assignments of mortgage?

Since MERS no longer allows a plaintiff to sue in MERS' name, this IS mostly a dead issue EXCEPT where such litigation is already in progress.
 
Notwithstanding, the prior decisions of the appellate courts frames the argument about assignment as well.
 
Azize was decided based upon patently false facts and false averments.
 
Both the Azize decision and the Revordo decision are extremely vulnerable and an appellate court could reach a very different decision IF the proper facts WERE actually pled into evidence! 
 
Very often, an understanding of the stronger arguments and the history of these decisions can inform and frame our arguments.
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FnDoomed
James:
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Does any of this affect or relate to MERS assignments of mortgage?


IMO all "MERS as nominee" style mortgage assignments can be fought three ways.  First: There is no evidence that MERS is an agent of assignor.  Second, there is no evidence that MERS was instructed by assignor to execute the assignment.  Third there is no evidence that [MERS officer] is an agent of MERS.

Of course, the assignments are the lesser half of the equation.  One still needs to address the Note.
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FnDoomed,

Although I agree with your assessment that all MERS as nominee style mortgage assignments can be fought in three ways, I have to bring to your attention Florida's 5th District Court of Appeals decision in Taylor v. Deutsche Bank44 So.3d 618 (Fla. 5th 2010).  

In that decision, the 5th DCA opined that MERS is a nonholder in possession of the instrument who the rights of a holder by virtue of the language in the mortgage document.  IMHO, this opinion needs to be overturned.  However, for the time being, this is what those in Florida are fighting against.  We have 3 out of the DCAs rule in favor of MERS.

Here is a Google Scholar link to the Taylor decision:
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