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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The MS Fraud site administrators have posted the MERS Appellant's Brief in MERS v. Nebraska Dept. of Banking at the MS Fraud main page and within the Legal Lounge.  It can be found directly at:

http://www.msfraud.org/Law/lounge/AppellantsBriefinMERSvNebraskaDeptofBankingFiled15Oct2004.pdf

 

The brief should also be read in conjunction with the decision of the Nebraska Supreme Court, which is reported as:

MERS v. Nebraska Dept. of Banking, No. S-04-786, 270 Neb. 529; 704 N.W.2d 784; 2005 Neb. LEXIS 177 (Neb. 2005).
I previously posted actual excerpts from the MERS' Appellant's Brief within discussion thread "Unfavorable Decision In Taylor v. Deutsche Bank Nat'l Trust Co", but this topic probably deserves its own thread:

“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.” [at pages 7, 8]

“In its Order, the District Court failed to recognize that MERS, in its agreement with its members, cannot exercise, and is contractually prohibited from exercising, any of the rights or interests in the mortgages or other security documents.” [at page 10]

“MERS only acts when directed to by its members and for the sole benefit of the owners and holders of the promissory notes secured by the mortgage instruments naming MERS as nominee owner.  For this reason, MERS’ ability to exercise any interests in mortgage loans, including the right to foreclose, is not sufficient to deem MERS as acquiring mortgage loans under the Act because MERS does not receive any of the benefits from taking such actions.  MERS has no interest at all in the promissory note evidencing the mortgage loan.  MERS has no financial or other interest in whether or not a mortgage loan is repaid.  As described above, MERS simply holds mortgage liens in a nominee capacity and through its electronic registry, tracks changes in the ownership of mortgage loans and servicing rights related thereto.” [at page 11]

“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.  Rather, MERS holds the mortgage lien as nominee for the owner of the promissory note.   MERS is not the owner of the servicing rights relating to the mortgage loan and MERS does not service loans.  The beneficial interest in the mortgage (or the person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note.  In essence, MERS immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.” [at pages 11, 12]

“As more fully explained below, MERS does not make or acquire promissory notes or debt instruments of any nature and therefore cannot be said to be acquiring mortgage loans.  MERS simply holds legal title to mortgages and deeds of trust as a nominee for the owner of the promissory note.  MERS has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.” [at page 12]

“MERS does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).  Rather, MERS, in a nominee capacity for lenders, merely acquires legal title to the security instrument (i.e., the deed of trust or mortgage that secures the loan).” [at page 13] 

“Since MERS does not acquire any interest in a debt instrument evidencing a loan (i.e., money being lent at interest) and does not make loans, arrange for loans or negotiate the terms of loans, it cannot be said to be acquiring loans, including mortgage loans, and therefore it logically cannot be deemed a mortgage banker.” [at page 15]

“It is important to understand that MERS may acquire a legal interest in a mortgage or deed of trust (as nominee for the actual lender) without acquiring any corresponding interest, legal or beneficial, in the promissory note secured by such deed of trust.  This is because the note owner appoints MERS to be its agent to only hold the mortgage lien interest, not to hold any interest in the note.” [at page 15]

“The investor continues to own and hold the promissory note, but under the MERS® System, the servicing entity only holds contractual servicing rights and MERS holds legal title to the mortgage as nominee for the benefit of the investor (or owner and holder of the note) and not for itself. MERS does not hold any interest (legal or beneficial) in the promissory notes that are secured by such mortgages or in any servicing rights associated with the mortgage loan.  The debtor on the note owes no obligation to MERS and does not pay MERS on the note. MERS holds legal title to the mortgage for the benefit of the owner of the note.  In effect, the mortgage lien becomes immobilized by MERS continuing to hold the mortgage lien when the note is sold from one investor to another via an endorsement and delivery of the note or the transfer of servicing rights from one MERS member to another MERS member via a purchase and sale agreement which is a non-recordable contract right. Legal title to the mortgage remains in MERS after such transfers and is tracked by MERS in its electronic registry.” [at pages 16, 17]

“MERS does not acquire an interest in promissory notes or debt instruments of any nature.” [at page 17]

“MERS does not collect mortgage payments. MERS does not hold escrows for taxes and insurance.  MERS does not provide any servicing functions on mortgage loans, whatsoever.  Those rights are typically held by the servicer of the loan, who may or may not also be the holder of the note.  The beneficial interest in the mortgage (or person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note and/or servicing rights thereunder.” [at page 20]

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Be sure to read the whole brief to get correct context!

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Also, take particular care to make sure that you get the brief into a properly admissible form for use as evidence in your case.

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William A. Roper, Jr.
A link to the Google Scholar presentation of the Nebraska decision probably belongs in this thread:

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


This version has hyperlinks to other cited cases.
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Texas
Date: Mon, 9 May 2011 18:04:56 +0000
From: "Kenneth M. Greene" <kmg@crlaw.com>
To: "UCC List (ucclaw-l@lists.washlaw.edu)"
    <ucclaw-l@lists.washlaw.edu>
Subject: [Ucclaw-l] Identification of Trustee as the Holder of a Note
Message-ID:
    <A445D2FD560424469721C6CA300600B8166EE42D@CR2a.crlaw.local>
Content-Type: text/plain; charset="us-ascii"

The NC Court of Appeals handed down its decision in the case of "In the Matter of the Foreclosure by David A. Simpson, P.C., Substitute Trustee, et al" on May 3, 2011.  A copy of the decision is reported at 2011 WL 1645699. (I will be happy to pdf the case to anyone without access).

The case involved the foreclosure of a deed of trust encumbering residential real estate that was part of a securitized pool of mortgage loans.  The note was endorsed by allonge endorsement to the order of "Deutsche Bank Trust Company Americas as Trustee", but the foreclosure petition and affidavits submitted in support of the foreclosure indicated that the owner and holder of the note and the debt was "Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6".  The court reversed an order authorizing foreclosure, holding that the petitioner had failed to show the existence of a valid debt "of which the party seeking to foreclose is the holder" as required by the NC foreclosure statute.

In so holding, the court looked to section 1-201(21) of the UCC for a definition of "holder". That section defines holder as the person in possession of the note that is payable either to bearer or to an "identified person that is the person in possession".  Even though the original of the note was produced at the hearing, possession was deemed insufficient as the allonge endorsement did NOT property identify the transferee of the note.  The court looked to section 3-110, but noted that the comments to that section state that this provision merely determines who can deal with an instrument as holder; it does not determine ownership of the note.

Does anyone know of decisions from other jurisdictions on this issue?  Our NC Court of Appeals cited none. This strict interpretation of the identification requirements of article 3 of the UCC is certainly 180 degrees different from the practice under article 9 permitted by the broad definition of "secured party" in 9-102(73 in NC's version) that does not require the identification of the underlying capacity of the representative or agent.

Kenny
Kenneth M. Greene
Carruthers & Roth, P.A.
Post Office Box 540
235 North Edgeworth Street
Greensboro, North Carolina 27401
phone: 336-478-1124
direct fax: 336-478-1115
main fax: 336-273-7885
email: kmg@crlaw.com<mailto:kmg@crlaw.com>
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Marty
I think that this is the document Mr. Roper is referring to in this post:

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

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Marty
In Mr. Roper's own words:

Quote:
William:

You ask some EXCELLENT questions, my friend! This same question could also be applied to the MERS Terms and Conditions and the MERSCorp Rules of Membership.

The answer to this quesiton is going to depend upon the law, particularly the Rules of Civil Procedure, of your jurisdiction. Moreover, the answer may also somewhat vary depending upon the stage of your foreclosure litigation.

In most places, authentication is accomplished by (a) a supporting affidavit, (b) an interrogatory response, (c) a response to a request for admission, (d) a response to a production request, (e) a response to a deposition or deposition on written questions, and/or (f) a stipulation.

Methods (b) through (e) involve discovery. Unfortunately, mortgage plaintiffs routinely engage in discovery abuse and cannot be relied upon to respond to discovery requests as the law requires. But you probably need to at least TRY.

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A particular problem exists with the MERS Appellant's Brief because the Clerk of the Nebraska Supreme Court does not routinely certify documents. That is, you can write to the Clerk of the Supreme Court and obtain a copy of the Brief directly from the Clerk, which I would encourage you to do. But this will NOT be a certified copy.

The Clerk is (or was) otherwise VERY HELPFUL. The Clerk offered to send me a copy of the brief by oral request, simply enclosing an invoice. The cost of copies was then minimal. The Clerk sent me the copy the same date I orally requested it (the Clerk was adament that no written request was necessary).

Notwithstanding the friendliness and convenience of the Clerk, I would encourage you to request the copy by written letter, if time is available. Within the letter, expressly ASK FOR a certified copy of the Brief. Keep a copy of the letter. Consider having some OTHER extremely reliable and responsible non-party to the suit make the request on your behalf. This gets you an affidavit from a third party disinterested witness.

Hopefully, you will receive a written letter in response from the Clerk including an explanation that the Clerk doens't certify copies. You should also have the mailing envelope from the Clerk. Have the person making the request sign a proper, admissible affidavit certifying that the copy of the Brief was that received directly from the Clerk of the Nebraska Supreme Court, including the requesting letter, the response letter (if any), the invoice and the mailing envelope as additional supporting exhibits. Have the affidavit be extremely precise as to the circumstances and identification of each exhibit, describing each with some precision.

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Even with such an affidavit, I would NOT rest upon my laurels nor would I stop with merely a supporting affidavit. I would expressly conduct discovery intended to authenticate the Brief.

This can be a little problematic. It is unfortunate to waste an interrogatory on such authentication. Also, the mortgage servicer may very well claim NOT to have any knowledge of the Brief and claim that they are unable to authenticate it. But this also somewhat immunizes you against an allegation that they doubt its authenticity and you have put them on notice of your intent to use the Brief as evidence well in advance of the summary judgment hearing or trial.

In some jurisdictions, such as Texas, interrogatories which ask solely for the authentication of documents do not count against the limit on interrogatories one may ask.

You can ask for an admission through a request for admissions that the copy is a genuine copy of the Brief MERS filed.

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If MERS is a party to your litigation, you can ask these questions of MERS directly using written discovery. If MERS is a non-party, you can (a) name MERS in a third party complaint, serving MERS and bringing MERS in as a party (you would need a valid or at least viable theory to support this), or (b) serve MERS with a deposition on written questions asking for the authentication of the Brief.

The latter is probably the more efficient approach and could also be used to ask MERS other questions under oath about the Brief and its various allegations.

Similarly, you could take a deposition of a representative of MERS and ask for the production of the Brief in an accompanying subpoena. Then you could ask the MERS representative questions about the Brief directly.

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I would recommend a combined approach anticipating that the mortgage investor or servicer will engage in illegal discovery abuse and that you may need to seek the Court's intervention to get the necessary proof. But if you have given the plaintiff the opportunity to authenticate the Brief by an interrogatory and/or request for admission, your attorney may be able to recover his or her fees in seeking the deposition where the plaintiff unlawfully resists discovery.

Finally, there is nothing wrong with asking the Court to take judicial notice of the copy(ies) of the Brief posted online or to take judicial notice of the Brief as it is filed with the Nebraska Supreme Court. Also putting in a copy of the published decision in the Nebraska case is also another means of enhancing the credibility of the Brief. It is undeniable that the Nebraska Supreme COurt decided this case.

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In conclusion, also note that in a summary judgment setting the Courts in most jurisdictions are usually required to assume that all of the non-Movant's disputed evidence is true and to generally give the non-Movant benefit of the doubt. This may or may not apply to admissibility, so I would NOT assume this to be the case, but getting both the precise text of the Rules and the cases relating to the Rules would seem to be a good idea and being prepared to argue that you should be accorded this indulgence by the court is possibly also a useful backstop.

In the end, you need to ask a qualified attorney from your jurisdiction this same question and to do your own research and due diligence as to the Rules and the law of your jurisdiction. I simply describe a framework for further inquiry.

Best of luck!


This is from the thread "MERS Officers". Maybe someone else knows how to create a link to that thread.
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Ludwig
This thread includes a useful discussion of getting the MERS Appellant's brief into evidence:

"MERS Officers"
http://ssgoldstar.websitetoolbox.com/post?id=5001003
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