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.
MERS is seeking to offset its devastating loss in the In Re Agard Bankruptcy case in New York by trumpeting its success in a Kansas decision styled In Re Martinez.  Of course, MERS doesn't want anyone to actually READ this decision, because of both the narrowness of its victory there and the mention within that decision of MERS' two stunning losses before the Kansas Supreme Court and the Kansas Court of Appeals.

A reading of the cases where MERS prevails is just as important as reading the cases where MERS is eviscerated in understanding and framing the arguments.  So I have posted the two related Martinez decisions to Scribd for the perusal and comment of MS Fraud Forum participants.

The earlier of the two Martinez cases was a victory for defendants David Michael MARTINEZ and Michelle Christine MARTINEZ before the Kansas Court of Appeals.  In that case, the decision of the district court was set aside due to the plaintiff's failure to demonstrate requisite standing.  That case was:
Mortgage Elec. Registration Sys. v. Martinez, No. 101,848 11 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish pursuant to Rule 7.04 (2009 Kan. Ct. R. Annot. 54). The published version was filed with the Clerk of the Appellate Courts on October 25, 2010., COURT OF APPEALS OF KANSAS, 44 Kan. App. 2d 547; 2010 Kan. App. LEXIS 130, April 30, 2010, Opinion Filed.
http://www.scribd.com/doc/48991154/MERS-v-Martinez-Decision-44-Kan-App-2d-54730-Apr-2010
http://www.kscourts.org/Cases-and-Opinions/Opinions/CtApp/2010/20100430/101848.pdf

After the Court's decision in the appellate shown above, it appears that MERS and Countrywide sought to refile the original foreclosure action, but there had subsequently been a couple of other developments.  Defendant David MARTINEZ seems to have died in August 2010.  And Mrs. Michelle Christine Graham MARTINEZ was in Bankruptcy.

It was within an adversary action in this Bankruptcy that the issues were relitigated with a decision favorable to MERS handed down on February 11, 2011, by Judge Janice Miller KARLIN:
In Re Martinez, Case No. 09-40886, Adversary No. 10-7027, U.S. Bankruptcy Court for the District of Kansas, Filed February 11, 2011
http://www.scribd.com/doc/48991509/In-Re-David-Michael-MARTINEZ-Memorandum-Opinion-11-Feb-2011
http://www.ksb.uscourts.gov/images/ksb_opinions/JMK_10-07027-58.pdf
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I will add some further comments and analysis later!
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A motion to reconsider was filed by me on behalf of Ms. Martinez in Martinez v. MERS on February 24, 2011.  I was also counsel of record for Ms. Martinez (Graham) in the Kansas Court of Appeals case, MERS v. Graham.
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I'd be interested to know how they acquired standing between the appellate decision and the bankruptcy court. 
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Guys give it up. Every court in the country (literally hundreds), the two uninformed courts herein mentioned notwithstanding, have upheld MERS's very reasonable and limited role in assigning mortgages as an agent of the member-lenders. The UCC also puts to bed any of these frivolous and dilatory arguments. Negotiation of the note assigns the mortgage by operation of law. Therefore any mers assignment has no independant legal effect.

MERS is indistinguishable from the National Securities Clearing Corporation. Talk about frivolous defense. My 401k suffers because these deadbeats delay foreclosure into perpetuity on straw argument. Tell your clients to pay their bills or if they can't afford to do so, relinquish the property so the world economy can get going again. U ain't helping anyone.

The BK judge got it right in Martinez v. MERS. If MERS is invalid then so too is every life insurance contract, burial contract, and securities clearinghouse. Our society cherishes the Freedom to contract and you dont have a statute to stand on. Third party beneficiary contracts and agency roles too are quite important to a functioning capitalist society. Trying to mislead an Uninformed judge into Finding against such Is not a good result just on the grounds that your client wants to keep getting free rent in a house he should have known he could no longer afford or maybe never could afford. like it or not MERS hold 13 trillion in mortgages as nominee. That thirteen trillion is secured by the taxpayer. Stop villainizing the banks, giving defaulting homeowners false hope, and stalling our housing recovery with this junk reasoning. We depend on 'the evil banks.' So do your clients.
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Bill

Quote:

Every court in the country (literally hundreds), the two uninformed courts herein mentioned notwithstanding, have upheld MERS's very reasonable and limited role in assigning mortgages as an agent of the member-lenders



Is this a joke? 

Mr. Bigsby, why are lenders no longer allowed to foreclose in the state of FL under MERS name?


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Because you misread my post buddy. I said assign, not foreclose in the name of. Big difference between being a plaintiff and executing an assignment, the latter of which was the subject of debate in Martinez v. Mers, landmark Nat'l bank v. Kesler, and countrywide v. Montoya.

Besides see MERS membership rule 8 (stating that they do not foreclose in their name unless they have possession of the original promissory note, which under the UCC insufficient alone to confer standing). If I possessed your original promissory note indorsed in blank then I could foreclose in you. It becomes bearer paper just like adollar bill in the street. I could negotiate it to my dog and he could foreclose. The analysis ends there, regardless of what Matt Taibi's whiny blogs or the new York times tells you.

Also Florida is a ridiculous flashy shallow cash-hungry state where you built tens of thousands of new condos in a decade all of which were tenuously owned by overleveraged investors. let's please not use floridas retarded market as some kind of bellwether for the other 49 states. Additionally, FL was singularly responsible for the new rule issued by the GSAs making condo paper non-conforming. That took away almost all financing options for putative condo buyers in the rest of the country. So...thanks?
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    In Florida, MERS had a close call. They lost at the Circuit level but won
a minor victory in the 2nd DCA. The next step would have been the Florida
Supreme Court so they decided not to risk it and banned all foreclosures
in the name of MERS in the State of Florida.
    Also in Florida, MERS is registered with the Department of State Division
of Corporations as a Registered Agent, not a normal for profit corporation.
This means they can accept process for members but do nothing else like
assign mortgages. However this hasn't stopped the foreclosure mills from
using MERS to assign mortgages when they have no other proof of the transfer of the loan.
     Just today I worked on a case where a law firm had MERS assign a mort
from IndyMac to OneWest on Jan 27,2011. The problem with that is that
IndyMac went out of business in July 2008 and was taken over by the FDIC.
OneWest admits not having the Note and the copy submitted has no endorsements on it.
     Apparently, IndyMac was not in possession of the Note when the
FDIC took it over. Most likely the Note had already been sold multiple
times to different investors on the secondary market, ie in the note pools
of securitization. It is clear that IndyMac was using depositor funds to run
a Ponzi scheme until the investors wised up and stopped buying their Notes.
Then the proverbial caca hit the fan and they imploded.
     In my humble opinion, MERS is a cover for these Ponzi schemes, but only
time will tell for sure.
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William A. Roper, Jr.

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Clayton Bigsby said:
Guys give it up. Every court in the country (literally hundreds), the two uninformed courts herein mentioned notwithstanding, have upheld MERS's very reasonable and limited role in assigning mortgages as an agent of the member-lenders. The UCC also puts to bed any of these frivolous and dilatory arguments. Negotiation of the note assigns the mortgage by operation of law. Therefore any mers assignment has no independant legal effect.

MERS is indistinguishable from the National Securities Clearing Corporation. Talk about frivolous defense. My 401k suffers because these deadbeats delay foreclosure into perpetuity on straw argument. Tell your clients to pay their bills or if they can't afford to do so, relinquish the property so the world economy can get going again. U ain't helping anyone.

 
Clayton:
 
It is unclear to me whether you are merely an uninformed blowhard or whether you are fully aware of the falseness of the information you post.
 
There have to date been a very wide range of decisions relating to MERS nationally.  These are now almost universally going AGAINST MERS.
 
This is true DESPITE the fact that MERS litigates using expensive silk stocking law firms and the defendant/borrowers are very often litigating pro se.
 
Where MERS has WON, it has been almost universally against a pro se litigant who is ill informed and has framed the arguments poorly or where the pro se litigant has failed to get critical information into the record as evidence.
 
When the borrower is well represented and the arguments are well presented, MERS LOSES.
 
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MERS is a criminal enterprise.  It has facilitated the forgery of millions of assignments.  Its days are numbered.
 
Here are a sampling of some of the cases MERS has LOST:


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://www.kscourts.org/cases-and-opinions/opinions/supct/2009/20090828/98489.htm
http://scholar.google.com/scholar_case?case=7208887003475335230

Mortgage Elec. Registration Sys. v. Saunders, Cum-09-640, SUPREME JUDICIAL COURT OF MAINE, 2010 ME 79; 2010 Me. LEXIS 83, June 15, 2010, Argued, August 12, 2010, Decided.
http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me79me.pdf

Mortgage Elec. Registration Sys. v. Southwest Homes of Ark., No. 08-1299, SUPREME COURT OF ARKANSAS, 2009 Ark. 152; 301 S.W.3d 1; 2009 Ark. LEXIS 121, March 19, 2009, Opinion Delivered,  THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., Rehearing denied by Mortgage Elec. Registration Sys. v. Southwest Homes of Ark., Inc., 2009 Ark. LEXIS 458 (Ark., Apr. 23, 2009).
http://scholar.google.com/scholar_case?case=12763802771752796019

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


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There are many, many more!  MERS loses in a variety of ways and on a variety of issues.  The issue you cite, as to MERS' authority to execute assignments has hardly been litigated AT ALL and where it has been, it has mostly been litigated WITHOUT the rich body of evidence associated with tens of thousands of blatantly fraudulent assignments for which no court any place in teh country could possibly rule in MERS' favor.

It seems rather clear that either you are very poorly informed OR you are simply a blowhard with an agenda who seeks to spread FALSE INFORMATION.  Beware!  People can actually be HELD ACCOUNTABLE for knowingly making false statements if the purpose is to deceive and artificially prop up stock prices or otherwise to engage in conduct which might defraud others.

If you are simply poorly informed, stick around and we can help you realize the errors in your thinking and analysis!

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And by the way, your 401K suffers because of the FRAUDS perpetrated upon the public and the markets by MERS and the U.S. banking industry!

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Yawn. You hippies keep trying. Everyone agreed to the nominee relationship. None of the defaulting borrowers cared about it when the banks gave them hundreds if thousands of dollars. It's on page one, paragraph 1 in bold. MERS isn't publicly traded and makes no money on foreclosure. There are literally hundreds of cases to cite but since clearly nobody is interested in the rule of law here except forth four minority courts which have been negatively cited I'll forbear. By the way, landmark national bank was shredded by a federal court in kansas wherein MERS actually had an opportunity to put on argument. So congrats, you found four judges out of thousands who aren't as smart as the rest, or just think liars should stay invokes that contractually aren't theirs anymore. Is nobody here aware of the fraud perpetrated by DEBTORS when they lied in their stated income applications to extract 105% LTV loans from the banks? If youre mad at anyone be mad at the largely defunct group of brokerages that issued the loans, not the investors and servicers that picked them up as holders in due course on the secondary market.

Oh and Mike H that I don't have the note situation is contemplated in the UCC. see 3-309. Fraud my a$$. "MERS is a seperste company acting solely as nominee for lender and its assigns." emphasis on assigns. Onewest got the note and then MERS assigned. Then the note was lost. You got a beef, then go to trial and buy another six months for your client. You don't get a free million bucks just because fedex lost your note package.
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Bigsby...... You are on the wrong forum. You need to educate yourself and then come back.

I hope you don't have money in this mess. Because it's gone now.

I hope you don't know anyone who is going through this mess, because you may need our help one day.

Mr. R, was right. "You are merely an uninformed BLOWHARD"

I don't think any of us have any use for your opinions.
cmc
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Brindy
Yawn. You hippies keep trying.

Go back to the little closet under the stairs in your grandma's basement from where you spawned.  Be sure you send in that Title 16 notice next week so you can get your
$ 21.00 SSI check for another bottle of Lithium. Make sure you hide when you crawl out of the basement window so the neighbors dog doesn't use you for a toilet.

What a dolt.


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Please keep in mind that employees of banks, mill attorney's, servicers, etc. will visit and post.  I will leave the interpretation for their visits up to each individual.
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William A. Roper, Jr.
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Clayton bigsby said:
Yawn. You hippies keep trying.  Everyone agreed to the nominee relationship..

 
Ah, yes!  Brilliant, Clayton.
 
Except that this "hippy" went to Wharton, served as president of a residential mortgage company and chews up foreclosure mill attorneys and spits them out.  Moreover, I am a conservative Republican who is well known and well respected by legislators and prosecutors.  I am also a veteran who has defended your right to waste everyone's time with your ill-informed banter.
 
"Everyone agreed to the nominee relationship???"  Huh?
 
Have you ever even read the language of the notes, mortgages and deeds of trust you are discussing?
 
If you knew ANYTHING about these instruments, you would realize that they are NOT contracts, but rather unilateral instruments.  The named mortgagee (MERS) doesn't sign the instrument.  Neither does the named "Lender" and beneficiary.  The instrument is executed ONLY by the grantor/borrower.
 
It is a legal impossibility for ME or any other person to create a valid agency relationship between two other independent entities on the basis of a unilateral grant! 
 
It is also a legal impossibility for a person or entity to act as the nominee or agent for a dead person, a defunct corporation or a non-existent person or entity.
 
Five centuries of agency law teaches us that a power of attorney is terminated by the death or dissolution of the principal.  The agent can only act on behalf of the principal in respect of those transactions in which the principal might act.  And a dead person cannot execute an assignment.  Neither can a corporation which has surrendered its corporate charter.  Any agency relationship is absolutely terminated when the principal can no longer act.  And all asserted acts under such authority are legal nullities.
 
Your knowledge and understanding of these matters wouldn't even fill a thimble.  So why don't you run along and post your ill-informed spin somewhere that people are actually ignorant enuogh to believe you utter nonsense!
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Angelo
Bigbsy

Lets first start off by saying that we didnt agree to MERS as nominee, when we came to the closing table nobody even mentioned that there was a third party involved in the contract.  Yea it was on page one, but not one person had a clue to what that meant, even the lawyers! 

Also, it was the homeowners who overstated their income? HA, if you are lending 500k to somebody and not check what they are claiming to make, you should get burned.  Dont even try to put that on the homeowners, the banks new they were either 1) going to bet against these toxic loans and make 10X what they were worth or 2) sell the loans to somebody else and let them get burned. i.e. pension funds, investors etc.

Furthermore, READ THE AGARD DECISION, this whole scam called MERS is going down fast, just because they supposedly hold, by your account, 13 trillion as nominee means nothing. 

Please tell me how they can assign a mortgage for a company that no longer exsists, they cant.  But they still do, do know why because they fabricated frauds, plain and simple.
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All you posters, except Clayton, you are right on and thanks for your post.

Clayton, you poor misguided piece of crap.  I really had to laugh when you wrote about DEBTORS who lied about their stated income.  Well these loans were approved without the banks, mortgage brokers, etc.  doing their jobs and checking the information given by the DEBTOR.  They did not do their jobs because the $$$$$ was more important.  If they had done their job lots of these bad loans would never have been made.  So, my dear Clayton, there is enough blame to go around starting from the top down.  No one is buying your crap.
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William A. Roper, Jr.
Quote:
Clayton bigsby said:
"MERS is a seperste [sic] company acting solely as nominee for lender and its assigns." emphasis on assigns.  Onewest got the note and then MERS assigned.  Then the note was lost.


Amongst the other drivel which you babble in your barely coherent posts, the preceding statement is legally incorrect on two counts.

And whichever idiot it was who drew up the language appearing the the standard MERS "MOMS" mortgage, deed of trust or other mortgage security instruments clearly couldn't actually PASS an introductory law school course on the Law of Property.

I hope you DO KNOW that MERS neglected to get any written legal opinion from a law firm in any state about the legal sufficiency of its language before rolling out its program and putting more than 60 million mortgages into its legally defective arrangement!  That little tidbit emerged this past year.

Your first erroneous statement and legal conclusion concerns the purpose and the effect of the inclusion of the language "and its assigns".  In antiquity, land was passed almost solely by hereditary bequest by Will.  Most often, when sold, what was being sold was only a life interest in the property to a favored friend, relative, servant or vassel in respect of that person's service.

And absent the express inclusion of language making the grant devisable (able to be passed by Will) and alienable (assignable) the interest was ONLY to the grantee and for the grantee's lifetime.

See, generally, Blackstone's Commentaries on the Law.

And see my prior posts on this topic within Carrie's discussion thread:

"What if the originating lender no longer exists." (01/24/11 at 12:29 AM et seq.)
http://ssgoldstar.websitetoolbox.com/post?id=5061652


 

IF you are not merely a juvenile and own some property, go and check YOUR DEEDS.  Hopefully they WILL include language granting the interest to you as well as your "heirs, successors, administrators and assigns".

Do you think that this language actually CONVEYS your interest to one or more of these?

Of course NOT!  It doesn't constitute a GRANT to the "heirs, successors, administrators and assigns" but rather PERMITS YOU to convey the property to these others.  Absent that language you might have merely a life interest and lack the ability to aliene your interest.  In short, WITHOUT the language PERMITTING you to aliene to assigns, you could NEITHER SELL NOR MORTGAGE the property! 

So the language included within the MOM mortgage doesn't mean that the mortgage is somehow automatically assigned OR that MERS automatically become the nominee of the assignee.  To the contrary it merely PERMITS MERS to act as the nominee IF so appointed by the assignee AND if the instrument is actually assigned!

Duh!

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Then you go on to babble about the "assignment" of the note.  But notes are NOT assigned.  Notes are negotiated

Negotiation is by indorsement and delivery.

And if you actually READ the MERS Rules of Membership, you would discover that MERS members are required to both negotiate the instrument and assign the mortgage in order to convey the members' interests.

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Finally, your assertion that the note was lost shows how little you know about the mortgage business.  Notes are almost never lost.  But the foreclosure mill law firms have been routinely suborning perjury by obtaining false affidavits the falsely state that the note is lost. 

When this is proven, the borrower gets a free house and your retirement fund is happily extinguished!  YOU are the fool for actually believing ANY of the drivel being fraudulently perpetrated by the purveyors of the biggest fraud inthe history of capitalism!
 
As Benjamin Franklin said more than two centuries ago, "A fool and his money are soon parted".  While I am anguished over the millions who have been harmed by all of the fraudulent activity, I am delighted to learn that you are going to be parted from your retirement funds!
 
Run along, Clayton!  Your juvenile banter is hardly threatening or convincing to the multitude who are both more intelligent and better informed than you.
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