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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Mike
Has anyone sucessfully argued this?  If the mortgage follows the note whether recorded or not how can you really seperate the two?  I understand some argue that MERS is holding the mortgage and the note is sold but the mortgage follows the note.  While a MERS assignment may not be a valid transfer of the mortgage does it even matter if the assignee has the equitable title by the negoation of the note? 

Who (what cases) has won the note is seperated from the mortgage argument?  


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William A. Roper, Jr.
Mike:

I think that one of the core arguments centers on whether MERS is really the mortgagee or whether MERS is merely a nominee for the original Lender.

If MERS really holds legal title to the mortgage, deed of trust, and/or other mortgage security instrument, as principal, creating a true bifurcation, then this begs the question as to whether the mortgage could, in fact, automatically follow the note.

By contrast, if MERS is merely a nominee, this begs the question about MERS' authority to be named in the stead of the Lender in the real property records.

As Professor Christopher PETERSON points out, MERS shifts between various alternative explanations of its theory of ownership in various suits in which it has different, often conflicting interests and roles.

MERS CLAIMS to hold legal title to the mortgage, deed of trust or other mortgage security instrument.

And MERS claims to come by this interest in one of two ways.  In some instances, the mortgage, deed of trust or other mortgage security instrument is purportedly assigned to MERS, even as the promissory note is negotiated to another different unrelated entity.

The holdings that a note and mortgage lien are inseparable would seem to make such an arrangement a nullity.

But MERS also claims to be mortgagee of a large number of instruments in which it is named in the original instrument itself.  These are so-called MERS as Original Mortgagee (MOM) loans.  In this instance, the parties are purportedly agreeing by contract to the arrangement vesting the title to the mortgage, deed of trust or other mortgage security instrument in MERS.

Both the U.S. Constitution and most state constitutions contain express provisions affording parties some latitude to privately contract and protecting the sanctity of private contracts.  It is unclear whether the many ancient holdings throughout the country that a party cannot separately convey the debt and the security to different entities apply to the situation wherein the parties contract at inception to do this very thing.  And if these laws DO apply, does this render the original mortgage security arrangement void or voidable, or, instead is the conveyance of the security interest to MERS merely void or voidable?

If the bifurcation is valid, can these interest even be subsequently reunited in consideration of longstanding holdings that the mortgage cannot be independently assigned? 

The facts of each case are slightly different.  MERS has WON in many instances by twisting and contorting its argument, while using some really high priced and otherwise capable lawyers to deceive the courts.

A defendant needs to carefully assess and distinguish the unique facts of the defendant's own case and then CHOOSE BETWEEN the many various arguments that MERS has presented to courts around the country.  Basically, MERS' deceit needs to be carefully turned back on this criminal enterprise to present a compelling case upon which the court can see MERS for what it actually IS. 

Which way to package this argument depends completely upon precisely HOW MERS has come to claim an interest in the mortgage loan at issue, what MERS has purportedly done in respect of its purported interest, whether the action is in a judicial or non-judicial foreclosure state, whether the case is in bankruptcy or in state court, as well as the existing holdings of the jurisdiction where the matter is being litigated.

A really critical thing is to run discovery against MERS, and also to get into evidence various primary documents which will show that allegations and representations made to the court are untrue.
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