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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Wednesday, June 22, 2011

IN NON-JUDICIAL STATES, MERS HOLDS AND OWNS NOTHING.

 

In deed-of-trust states, MERS holds and owns nothing.

I believe there has been a useful, yet rarely made, argument available in non-judicial states (those using primarily deeds of trusts rather than mortgagees as the typical security instrument) since the 2009 Supreme Court of Arkansas decision in Southwest Homes.

The argument is that MERS holds or owns NOTHING under a typical deed of trust, notwithstanding the deed-of-trust language that "
MERS holds only legal title to the interests granted by Borrower in this Security Instrument."

While the Southwest Homes case does not explain it, the reason for the argument appears to be that a deed of trust by its very nature is a three-party instrument, whereby the trustee holds "legal title" to the property, the beneficiary holds the so-called "beneficial title," and the homeowner in possession holds "equitable title."

Without going into detail about the fiction of splitting title and about each type of title, suffice it to say that there can be no more than one "legal title" to a single piece of property. What that means is that when the homeowner as grantor (while retaining "equitable title") conveyed the "legal title" to his property to the trustee under the deed of trust, there was no "legal title" left in any of the remaining interests (which are the homeowner's equitable title and the creditor's beneficial title).

Thus, the language in the deed of trust that "MERS holds only legal title to the interests granted" is a nullity because the "interests granted" involve (1) the grant of the legal title to the trustee and (2) the grant of beneficial title to the creditor (by virtue of the trustee holding the legal title "for the benefit" of the creditor). There can be no conveyance of the "legal title" to both the trustee and to MERS. Since the trustee's ownership of the legal title is undisputed, that leaves no legal title to be held by MERS. Thus, MERS holds absolutely no interest, legal, beneficial, or otherwise under a typical deed of trust from the very beginning (or, in legalese, ab initio).

Thus, MERS' designation as "nominee" and its resulting position under a typical deed of trust is much weaker in non-judicial states than most people (including judges) believe.

Quote 0 0
Douglas
That won't work in California.
Quote 0 0
William A. Roper, Jr.

Jim Goeke:

Regrettably, I fear that Attorney Gregory Bryl has gotten his understanding twisted into a bit of a pretzel, though with MERS' Byzantine logic, it is easy to see how this happens.

Mr. Bryl seems to confuse the legal title to the subject property with the legal title to the deed of trust.

    "The name of the song is called 'Haddocks' Eyes'"
    "Oh, that's the name of the song, is it?" Alice said, trying to feel interested.
    "No, you don't understand," the Knight said, looking a little vexed.  "That's what the name is called.  The name really is 'The Aged Aged Man'"
    "Then I ought to have said, 'That's what the song is called'?" Alice corrected herself.
    "No, you oughtn't: that's quite another thing!  The song is called 'Ways and Means': but that's only what its called, you know!"
    "Well, what is the song then? said Alice, who was by this time completely bewildered.
    "I was coming to that," the Knight said.  "The song really is 'A-sitting on a Gate': and teh tune's my own invention."
Through the Looking Glass by Lewis Carroll (1919)

At core, in a deed of trust state, the deed to the subject property is typically conveyed to the trustee in trust, while the borrower retains equitable title to the property.  The trustee under the deed of trust holds legal title to the subject property.  The Lender typically holds beneficial title to the property.

Traditionally, the Lender (or its assignee) would also hold legal title to the deed of trust of which it is the beneficiary.

In an MERS as Original Mortgagee instrument (deed of trust), MERS rather than the Lender is identified as beneficiary of the deed of trust and MERS claims to hold legal title to the deed of trust.  This is NOT the same thing as holding legal title to the subject property, which remains vested in the trustee (or, later, a substitute trustee).

I believe that Mr. Bryl is confused and mistaken.

But note that a number of courts have interpretted MERS mortgages in a variety of ways, including determinations that MERS doesn't really hold the interest it claims and asserts.  MERS' interest is dependent upon the determinations of the state courts in each state!

*

If you want to have a fairly robust understanding of MERS, you need to read at least:

Facts About MERS / MERS Unmasked
http://ssgoldstar.websitetoolbox.com/post?id=2063120

"Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory", by Christopher Lewis Peterson (September 19, 2010)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1684729

"Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System", by Christopher Lewis Peterson, University of Cincinnati Law Review, Vol. 78, No. 4, 2010
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1469749

"Predatory Structured Finance", by Christopher Lewis Peterson, Cardozo Law Review, Vol. 28, No. 5, 2007
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929118

"The Case Against Allowing Mortgage Electronic Registration Systems, Inc. (MERS) to Initiate Foreclosure Proceedings", by Nolan Robinson Cardozo Law Review, Vol. 32, No. 4, p. 101, 2011

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1791896


MERS Terms and Conditions
http://www.scribd.com/doc/44807159/MERS-Terms-and-Conditions-2008

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

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

MERSCorp v. Romaine
http://ssgoldstar.websitetoolbox.com/post?id=5356398

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://scholar.google.com/scholar_case?case=2152232271081837686

MERS v. Saunders, Cum-09-640, SUPREME JUDICIAL COURT OF MAINE, 2010 ME 79; 2 A.3d 289; 2010 Me. LEXIS 83 ( August 12, 2010).
http://www.scribd.com/doc/40691756/MERS-v-Saunders-2010-ME-79-15-Jun-2010
http://scholar.google.com/scholar_case?case=14224889172679208203

MERS v. Southwest Homes of Ark., No. 08-1299, SUPREME COURT OF ARKANSAS, 301 SW 3d 1, 2009 Ark. LEXIS 121 (March 19, 2009)
http://courts.arkansas.gov/court_opinions/sc/2009a/20090319/published/08-1299.pdf
http://scholar.google.com/scholar_case?case=12763802771752796019

Landmark Nat. Bank v. Kesler, No. 98,489, 216 P. 3d 158 (Kan. 2009)
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/98489.htm
http://scholar.google.com/scholar_case?case=7208887003475335230

Bellistri v. Ocwen Loan Servicing, LLC, No. ED 91369, 284 SW 3d 619 (Mo. App. 2009)
http://scholar.google.com/scholar_case?case=8267048288611949788

BAC Home Loans Servicing, L.P. v. White, Case No. 108,736, COURT OF CIVIL APPEALS OF OKLAHOMA, DIVISION ONE, 2010 Okla. Civ. App. LEXIS 132, December 3, 2010, Filed,  This Opinion has been Released for Publication by Order of the Court of Civil Appeals.
http://www.scribd.com/doc/45108174/BAC-Home-Loans-v-White-Decision-OK-Court-of-Appeals-03-Dec-2010

In re Mitchell, Case No. BK-S-07-16226-LBR, Chapter 7, U.S. BANKRUPTCY COURT FOR DIST. OF NEVADA, 423 B.R. 914, 2009 Bankr. LEXIS 876 (March 31, 2009), Relief from automatic stay denied In re Mitchell, 2009 Bankr. LEXIS 866 (Bankr. D. Nev., Mar. 31, 2009).
http://www.nvb.uscourts.gov/Opinions/Riegle/07-16226%20Opinion.pdf
http://scholar.google.com/scholar_case?case=11990618192854486161

In re Sheridan, Case No. 08-20381-TLM, Chapter 7, U.S. BANKRUPTCY COURT FOR DIST. OF IDAHO, 2009 Bankr. LEXIS 552  (March 12, 2009).
http://www.id.uscourts.gov/decisions-bk/Sheridan_decision.pdf
http://scholar.google.com/scholar_case?case=3240568128909188417

In Re Agard, No. 810-77338, 2011 Bankr. LEXIS 488, 2011 WL 499959 (Bankr. E.D. NY 2011)
http://www.scribd.com/doc/48896354/In-Re-Agard-Memorandum-Decision-10-Feb-2011

Hopefully, you have already read the Weisblum and Silverberg cases out of New York State which have recently been the subject of Forum discuss.

 

*

 

You are NOT going to obtain an understanding as to some particular argument reading such a brief argument by a lawyer posted at a web site.  And even if the argument was persuasive, it does NOT necessarily follow that this argument has been embraced by any particular jurisdiction.

 

The law about MERS is evolving.  It is evolving in different ways in different places.

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Thank you, your explanation cleared up quite a bit for me, but it has also raised a few questions too...

If  'Lender' assigns, under a Corporation Assignment of Deed of Trust, "all beneficial interest under that certain Deed of Trust" to 'Company B', and on the same date, 'Lender' also assigns under another Corporation Assignment of Deed of Trust, "all of its right, title and interest in and to a certain Deed of Trust" to MERS,
1) Would there need to be 2 assignments made to 'Company C', if 'C' were to try to foreclose?  One assigning B to C, and one assigning MERS to C?
2) Should both of the current assignments be in the custodian's files since the loan has been securitized?
3) Is this important on any level at all?

And, in regard to being in a DOT state:
On the second loan, (80/20) the same lender recorded and Assignment of Mortgage. I am in a DOT state.
4) Would that generally be viewed as just a form error, oversight, or something along those lines? Any significance there at all?

Thanks!


Quote 0 0
William A. Roper, Jr.
Quote:
SS said:
If 'Lender' assigns, under a Corporation Assignment of Deed of Trust, "all beneficial interest under that certain Deed of Trust" to 'Company B', and on the same date, 'Lender' also assigns under another Corporation Assignment of Deed of Trust, "all of its right, title and interest in and to a certain Deed of Trust" to MERS,
1) Would there need to be 2 assignments made to 'Company C', if 'C' were to try to foreclose? One assigning B to C, and one assigning MERS to C?
2) Should both of the current assignments be in the custodian's files since the loan has been securitized?
3) Is this important on any level at all?


I am assuming that your intitial description of the problem reflects that there were two separate deeds of trust on the same property, as in a first lien and a second lien.  If that is not the case, then I misunderstand your question.

When there are two liens on the same property it is more likely that they would go separate ways in securitization.  The first lien would be likely to be securitized right away.  Very often, the second lien is portfolioed by a depository institution and seasoned for a while and then later sold.  (I am somewhat shooting from the hip on this.  That used to be the way things were done, but I haven't investigated this in respect of the subprime bubble.)

Seasoning accomplished a couple of things.  First, the borrowers under the second liens developed a payment history, which for prime loans at least makes the loans more marketable.  Second, with a general inflation in housing prices after a year or two, the second lien has a better loan to value ratio.

The seasoned loan therefore would fetch a better price.  Of course, if you are doing reckless lending, you want to get the loan off your balance sheet as quickly as possible.

But even if both loans were securitized right away, it is far less likely that they would go into the same securitization.  If they were being bundled together to sell to the same investor, WHY use two loans instead of one?  The 80%/20% combination of first and second liens allows the first lien to be sold into a higher rated securitization while the second lien is sold into a more speculative securitization.

*

If only one loan was in default, that loan would usually be the loan which would be subject to foreclosure.  But a default in the second lien will often be an event of default of the senior loan, as well.

When both loans are in default, usually, it would be the senior lien which would be subject to foreclosure.  In a judicial foreclosure state, the senior lienholder would usually bring the foreclosure suit and would also name the junior lienholder.  This is necessary for the foreclosure sale to extinguish the lien of the junior lienholder.

When a senior lien is foreclosed judicially, the property is sold at auction.  If the property is worth more than the mortgage amount, then the second lien holder might attend and bid on the property.  Otherwise, the property might simply sell for the first mortgage amount, leaving nothing for the second lender.  If the property is worth less than the first mortgage amount (including attorneys fees and costs of sale), the second lien holder is going to take a haircut.

When the second lien holder forecloses, the buyer at a foreclosure sale usually takes the property subject to the senior lien.

This process works somewhat similarly, in a non-judicial setting as to priority, but the sale is conducted privately.

*

To your question, the necessity of showing assignments of either one or the other lein, the foreclosing entity would need to show an assignment of the one deed of trust it was seeking to enforce.  The other deed of trust would be enforced separately by the holder of the other note.

*

When you assert "the loan has been securitized", your question really doesn't make any sense.  If there are two notes and two deeds of trust, then there are two loans, not just one.  Each may have been securitized separately.  And each securitization would involve the particular instrument -- first or second lien -- being sold.

So the note and deed of trust for the senior lien would be in the collateral file of one securitization.  The note and deed of trust for the junior lien would be in a separate collateral file of teh other securitization.  The loan files of each would also probably include copies of the other note and deed of trust, since the other loan was relevant to the calculation of borrower debt to income ratios, Loan To Value ratios and other indicia of affordability and bankability.

To the extent that either of the loans, or both were securitized, there ought to have been a contemporaneous assignment of each mortgage placed in the collateral file.  This may have been an assignment in blank, which is of questionable validity.  There is probably also an assignment forgery actually used in support of the foreclosure.  

Quote 0 0
William A. Roper, Jr.

Quote:
SS said:

And, in regard to being in a DOT state:
On the second loan, (80/20) the same lender recorded and Assignment of Mortgage. I am in a DOT state.
4) Would that generally be viewed as just a form error, oversight, or something along those lines? Any significance there at all? 


You would need to look to the statute of frauds, the recording acts and other statutes and case law for your jurisdiction to ascertain the legal significance (IF ANY) of a description of the deed of trust as a mortgage within the assignment.

Usually, in most places, the Courts would infer that the parties intended the instrument to have meaning and to be given effect.  Courts usually look to the four corners of the instrument itself to ascertain the intentions of the parties.  When an ambiguity or uncertainty arises, the court might take parol testimony from one or both parties or others with knowledge of the facts of the transaction to ascertain what was intended.

A court would usually look past what was seen as a scrivners error which didn't alter the clear understanding of the parties intentions and would seek to give effect to the parties actual intentions.

The opinion of a stranger to the transaction as to what the stranger thought the language said or meant would usually be on no moment.

If I had only three horses -- a black stallion, a white mare and a gray mare -- and I contracted to sell one of these to you, but then erroneously made out the bill of sale stating that I was selling you the "gay mare", this would usually not result in a transactional failure creating uncertainty as to my intentions.  If an uncertainty were to arise, the court would inquire of us our intentions.

On the off chance that we were both swept away by the same tsunami before the delivery of the mare could be accomplished, the court would usually not inquire into either the sexual preferences or the disposition of my two mares in seeking to carry forward our agreed sale.  The court would more likely presume that the "gay mare" was merely a misspelling rather than a reflecton of our ascription of sexual preferences to horses!

Should your heirs or assigns appear and offer some proof that you desired the white mare, which showed an affinity for other mares, perhaps a singularly patient court might indulge the possibility that the white horse was indicated.  But if my heirs were quite adament that both my mares were fond of stallions and that it was my intention to sell only the gray mare, it is far more likely that the court would be skeptical of your heirs' unusual claim.

It would be exceptionally unlikely that the court would conclude that "gay mare" actually meant a black stallion with affinity for other stallions.

If it could be conclusively established that I intended to sell the gray mare and you intended to buy the white mare, then this could possilby lead to a rescission of the contract due to mutual mistake of fact, my actually offering to sell the gray mare, and you hoping that the white mare had an affinity for other mares.

The opinions of other non-parties to the transaction as to the appropriate color, gender or sexual preference of the horse described by the bill of sale would not usually be of interest to the court.  That is, expert testimony of Al Sharton, Gloria Steinham, Ellen DeGeneres or Robert Redford (Horse Whisperer) as to the meaning of the bill of sale would usually not be taken, though a witness to the transaction might be heard. 

Where a deviation in the language is slight, it is most often going to be overlooked in favor of a finding that the parties intended that the contract be carried into effect and that the intention of the parties might be derived from the surrounding langauge, actions, and even parol testimony of the parties.

NOTE:  I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE.
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Quote:
I am assuming that your intitial description of the problem reflects that there were two separate deeds of trust on the same property, as in a first lien and a second lien.  If that is not the case, then I misunderstand your question.

There is a first and second lien, as it is an 80/20 on the same property, HOWEVER, there are actually 2 Corporation Assignments of Deed of Trusts on the first ONLY.  My first 3 questions actually apply to the FIRST loan only. I haven't seen this anywhere, thus the questions. One assigns beneficial interest to one company, and the other assigns right, title and interest to MERS - on the same loan. I know it's logical to conclude that I was referring to 2 loans but I was not.

The second has its own, recorded, Assignment of Mortgage that I referred to, which is an entirely different issue that you addressed - and thank you for that.

Quote 0 0
Quote:
SS said:
There is a first and second lien, as it is an 80/20 on the same property, HOWEVER, there are actually 2 Corporation Assignments of Deed of Trusts on the first ONLY. My first 3 questions actually apply to the FIRST loan only. I haven't seen this anywhere, thus the questions. One assigns beneficial interest to one company, and the other assigns right, title and interest to MERS - on the same loan. I know it's logical to conclude that I was referring to 2 loans but I was not.


This is an approach which is unfamiliar to me and I would be unable to form a strong opinion about the possible intentions and motivations without examining the actual instruments.

If you are comfortable sharing these with me via e-mail, I am willing to take a look.

I have seen situations where the same mortgage has been the subject of two and even three apparently contradictory assignments.
 
This most often happens when a foreclosure mill forges and records an assignment and then the borrower somehow becomes current or enters into a modification.  Later, when the borrower is again asserted to have defaulted, the same or a different foreclosure mill forges a new assignments, forgetting, overlooking or otherwise not realizing that they had already forged an assignment before.

So it is possible that there was a miscue with a robosigner finding an old form of assignment in the file and executing it, with another assignment independently turning up from the foreclosure mill which just happens to be executed the same day.

But this seems unlikely.

A more reasonable explanation is that the foreclosure mill is somehow now trying to nuance the assignments in some way to get around the myriad of problems which have arisen as a consequence of prior forgeries.
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William A. Roper, Jr. wrote:

Mr. Bryl seems to confuse the legal title to the subject property with the legal title to the deed of trust.

At core, in a deed of trust state, the deed to the subject property is typically conveyed to the trustee in trust, while the borrower retains equitable title to the property.  The trustee under the deed of trust holds legal title to the subject property.  The Lender typically holds beneficial title to the property.

Traditionally, the Lender (or its assignee) would also hold legal title to the deed of trust of which it is the beneficiary.

In an MERS as Original Mortgagee instrument (deed of trust), MERS rather than the Lender is identified as beneficiary of the deed of trust and MERS claims to hold legal title to the deed of trust.  This is NOT the same thing as holding legal title to the subject property, which remains vested in the trustee (or, later, a substitute trustee).

I believe that Mr. Bryl is confused and mistaken.

But note that a number of courts have interpretted MERS mortgages in a variety of ways, including determinations that MERS doesn't really hold the interest it claims and asserts.  MERS' interest is dependent upon the determinations of the state courts in each state!

The law about MERS is evolving.  It is evolving in different ways in different places.

Hmmm...  William Roper: don't you have to start with the language on the deed of trust, which states that "MERS holds only legal title to the interests granted," as quoted in Bryl's original post? You say that "MERS claims to hold legal title to the deed of trust," but that is not what the quoted language says. Rather, MERS claims to hold "legal title to the interests granted by Borrower."

Also, I am not sure that introducing your concept of "legal title to the deed of trust" clears things up. As yet another fiction, it muddies things up instead of clearing them up. 

As far as I know, you can have title to a promissory note (as chattel paper) but not to a deed of trust, which is a mere incident of the note. How can you have title to something that cannot stand on its own (a deed of trust)?  A number of decisions you mention say that a recipient of an assigned deed of trust holds a nullity (while a recipient of a note by transfer gets both the note and the deed of trust).
Needless to say, the Supreme Court of Arkansas (a deed of trust state) certainly doesn't agree with you.

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Lauren

Wow,

I have to agree with the above post regarding MERS.

If anything, Mr. Roper’s arrogance brings him pretty darn close to making a fool of himself.  What’s even funnier is that when Mr. Roper utters complete nonsense, other members thank him for “clarification”, as if he was dispensing manna from heaven.

Let me explain.  Let’s assume that Mr. Roper got his term “title to the deed of trust” from some court cases.  Such cases probably don’t exist (I’d like to see an example), but cases using the term “title to the mortgage” probably exist.  So, in his “authoritative” post, Mr. Roper implicitly adopts such (erroneous) decisions when he coins the term “title to the deed of trust”.  Is that a reasonable thing to do as a homeowners advocate?  Does he have his own critical thinking skills?

Just think about this.  When you buy a car, you get “title” to it, which is formal evidence of your ownership.  If you can’t pay for the car and have to finance it, you won’t have the title in your possession, but your lender will hold on to it.  Does your lender then have “title to the title” of the car?  Do you see the absurdity?  You still hold title to the car, and the lender has possession of the title instrument.  The lender doesn’t have “title to the title instrument” because no such thing exists or has been created.

Now, on to real property.  A deed of trust itself is nothing more than an instrument of title -- an instrument evidencing one’s rights in the property.  Instead of being a title to a car, it's a title to a house.

When you buy a house, you get title to the house in fee simple.  That is evidenced by a recorded “deed”.  But because you can’t pay the entire purchase price, you immediately give most of your fee simple interest in the property to the trustee under the deed of trust, for the benefit of your lender.  This is accomplished by executing and recording a "deed of trust".  

Thus, the deed of trust is itself an instrument of title.  That is why it is recorded – as evidence of title, evidence of the trustee’s interest in the property and the other parties’ respective interests.  Plain and simple, a deed of trust is in itself a title instrument.  Does the trustee hold title to your property?  Yes.  What is the evidence of trustee’s title? – The deed of trust, an instrument of title. 

So saying that a party (such as MERS) has “title to the deed of trust” is like saying that the party has “title to a title”, which is absurd.  Maybe some courts inadvertently embrace such a concept, but why buy into it?

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Texas
There is a difference between Equitable Title and Legal Title, at least in Texas as being a Deed of Trust state.

Equitable Title is in the Obligor's name and Legal Title rests with a Trustee upon default of the Mortgage Note. Some argue that the Trustee named on the Deed of Trust holds Legal Title during the life of the Deed of Trust. I will not dwell into that argument.

But as it has been said, what does the face of the four corners of the Deed of Trust say? What does the law say about when the duties of the Trustee come into play?

Quote 0 0
Texas
Lauren said:

Thus, the deed of trust is itself an instrument of title.

The Deed of Trust is a lien which if properly executed and perfected gives right to a Trustee to execute a Trustee's Deed to transfer Title upon directions found in the Deed of Trust securing the Mortgage Note.. The Trustee's Deed is an Instrument of Title.
Quote 0 0
Steve
Nick and Lauren,

You seem to fail to understand that Mr. Roper is a leading national authority on MERS.  He was exposing MERS before Christopher Peterson even knew how to spell MERS.  Take a look at the post he shared above:

http://ssgoldstar.websitetoolbox.com/post?id=2063120
Quote 0 0
Texas
When you look at MERS, you need to consider E-SIGN UETA and Payment Intangibles. Payment Intangibles are under UCC, the Security for the Mortgage Note is under the laws of local jurisdiction. Also what is Real and what is Personal Property.

That goes back to 2000.

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http://www#scribd#com/doc/44807159/MERS-Terms-and-Conditions-2008

In following the line of discussion among the group members, minus the "family" bickering, I researched the MERS TERMS and CONDITIONS from a 2008 MERS Commercial statement and focused on Number 6 of the document#


6# MERS and the Member agree that:

#i# the MERS® Commercial System is not a vehicle for creating or transferring beneficial interests in commercial mortgage loans,

#ii# transfers of servicing interests reflected on the MERS® Commercial System are subject to the consent of the beneficial owner of the commercial mortgage loans,
and
#iii# membership in MERS or use of the MERS® Commercial System shall not modify or supersede any agreement between or among the Members having interests in  loans registered on the MERS® Commercial System#


If MERS is not a vehicle for creating or carrying beneficial interest by its own admission, then how can it have any standing in a foreclosure proceeding?

From the Kansas Supreme Court Decision:

Landmark Nat’l Bank v# Kesler, 2009 Kansas

The real parties in interest concealed behind MERS have been made so faceless, however, that there is now no party with standing to foreclose# The Kansas Supreme Court stated that MERS’ relationship “is more akin to that of a straw man than to a party possessing all the rights given a buyer” The court opined:

“By statute, assignment of the mortgage carries with it the assignment of the debt# # # # Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable# The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note# Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default# The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation# The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust#” #Citations omitted; emphasis added##

MERS as straw man lacks standing to foreclose, but so does original lender, although it was a signatory to the deal# The lender lacks standing because title had to pass to the secured parties for the arrangement to legally qualify as a “security#” The lender has been paid in full and has no further legal interest in the claim# Only the securities holders have skin in the game; but they have no standing to foreclose, because they were not signatories to the original agreement# They cannot satisfy the basic requirement of contract law that a plaintiff suing on a written contract must produce a signed contract proving he is entitled to relief#

Then; if there is no signed documents available, then you as a plaintiff  hires someone to make it up for you as a collateral file creation service for a nominal fee.

http://www.scribd.com/doc/59444662/Doc-Shop-Offerings-Optional-Collateral-File-Creation-services-can-be-performed-as-needed-pg-48

I just want to make my attorney smarter in defending my rights to my home. 

This forum offers me that opportunity to question everything that I know and this old dog is learning new tricks. Thank You.

Every person takes the limits of their own field of vision for the limits of the world.

Arthur Schopenhauer

German Philosopher (1788-1860)



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Florida
Interesting thread.  Here is what Christopher Peterson writes in one of the articles listed here in a prior post:

MERS's claim to own legal title to mortgages, despite the promissory notes those mortgages secure having been negotiated elsewhere, flies in the face of the legal maxim endorsed by the Supreme Court: accessorium non ducit, sequitur  principalem-the accessory does not lead, but rather follows the principal. Mortgages are inseparable from promissory notes because of the "dependent and incidental relation" that a mortgage has with the obligation it secures.
. . .
In thousands of cases around the country MERS's counsel continues
to recite the statement that "MERS holds legal title to the mortgage" as
though it were the fmance equivalent of some tantric mantra. Yet any
meaningful economic analysis of this claim exposes it as a simple
falsehood. MERS does not own the lien because it does not own the
proceeds of the sale rendering disposition of the property seized in
exercising the lien.
/end of quote/

Also, it seems that (with respect to the discussion in the earlier posts above) one would need to ascertain whether one is in a "title theory" state or a "lien theory" state.  It a title theory state, it seems that a deed of trust would be an instrument of title.
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