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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Bill
Does anyone have any thoughts on when an assignment of mortgage by MERS becomes a conflict of interest for the Plaintiff's attorney?

MERS was added as a defendant in my case because I have a 2nd mortgage.  I'm sure this is common.  My question is once added as a defendant when the counsel for the Plaintiff then prepares documents for MERS (an assignment of mortgage) it shows they have a client relationship with MERS and they are actively representing MERS.  This seems to get really muddy when MERS is the mortgagee (MoM Loan) on my mortgage, then use a document prepared by the Plaintiff's counsel for MERS to have the Servicer's employee to essentially assign the mortgage to themselves. 

How do you represent the Defendant and the Plaintiff in a action in civil court without it being a conflict of interest? 

Has anyone seen this argued in the courts?
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Bill

I know that judge schack in new york has dismissed numerous foreclosure without prejudice because he feels that there was a conflict of interest when the attorney for the plaintiff assigned the mortgage to the plaintiff as a representitive on MERS. For them to re-file they must come back with a written agreement that both banks knew of this conflict and have accepted it. It isn't exactly what your situation is but close. 

You can find his decisions here http://iapps.courts.state.ny.us/lawReporting/Search, just type MERS in the bottom line and look through his decisions. 

Hope this helps!
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Carrie
Bill, here is a clip of one of the cases that might give insight about the conflict of interest. I think you can read the entire case at the link Angelo posted. I have searched (unsuccessfully) for other cases where judges took issue with the Plaintiff's attorney acting as "ineffective assignor" of the MERS (MoM) assignment. If you are in NY, this might be an important case.

U.S. BANK, N.A. v. EMMANUEL
2010 NY Slip Op 50819(U)
U.S. BANK, N.A., AS TRUSTEE FOR SG MORTGAGE SECURITIES ASSET
BACKED CERTIFICATES, SERIES 2006-FRE2,, Plaintiff,
v.
ARRIANA EMMANUEL, ET. AL., Defendants.
19271/09.
Supreme Court, Kings County.
Decided May 11, 2010.

Steven J Baum, P.C., Amherst NY, Plaintiff-US Bank.
ARTHUR M. SCHACK, J.

The ex parte motion of plaintiff U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR SG MORTGAGE SECURITIES ASSET BACKED CERTIFICATES, SERIES 2006-FRE2 [U.S. BANK], for service of a supplemental summons by publication upon defendant ARRIANA EMMANUEL [EMMANUEL] and related relief, in the instant mortgage foreclosure action for the premises located at 1388 Lincoln Place, Brooklyn, New York (Block 1391, Lot 13, County of Kings) is denied with prejudice.

The instant action is dismissed and the instant notice of pendency is cancelled. Plaintiff U.S. BANK never had standing to prosecute this action because of an ineffective assignment of the subject mortgage and note to it. Plaintiff U.S. BANK's attempt to foreclose upon a mortgage in which it has no legal or equitable interest is without foundation in law or fact.

Further, even if this action was not dismissed, there is a conflict of interest in that plaintiff's counsel, Steven J. Baum, P.C., appears to be in violation of 22 NYCRR §1200.0 (Rules of Professional Conduct, effective April 1, 2009) Rule 1.7, "Conflict of Interest: Current Clients." The Baum firm represents both MORTGAGE ELECTRONIC REGISTRATION SYSTEMS [MERS], as nominee for FREMONT INVESTMENT AND LOAN [FREMONT], the ineffective assignor of the instant mortgage, and plaintiff U.S. BANK, the ineffective assignee of the instant mortgage. If the Court did not dismiss the action, the Court would need proof, in an affirmation by Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., that both MERS, as nominee for FREMONT, and U.S. BANK each gave "informed consent, confirmed in writing" to the concurrent conflict of interest in their representation by Steven J. Baum, P.C., with both MERS, as nominee for FREMONT, and U.S. BANK each being "aware of the relevant circumstances, including the material and reasonably foreseeable ways that the conflict could adversely affect the interests of that client."
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Bill
I think the NY cases are close, but there is a distinct difference...The attorney signed the assignment.  In my case and many more the attorney is preparing the document for the MERS officer at the servicer to sign. 

This doesn't change the fact that the attorney is representing both Plaintiff and Defendant. 

Anyone know why the MERS officer that works for the servicer doesn't just print and sign the assignments by themselves?  I always see the attorney for the Plaintiff prepairing these. 

I am not challanging that the MERS officer does or does not have to ablility to assign anything (that is a whole different thing).   I am curious about how an attorney can join a party as a Defendant while representing them and the Plaintiff at the same time.
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Sandy
Are you sure the servicer signed it? In my case, out of three attorneys with the same firm, one filed the suit and entered as the plaintiff's attorney and a second one signed the AOM as "certifying officer," which seems to be what happened in this Schack case. I almost missed seeing the second attorney's connection, as I first assumed it was a signature from the servicer.

One of the MERS publications for its members says that some states require a "vice president" to sign, one of which is my state. The MERS publication says no problem, just change hats and sign as vice president. MERS consistently publishes, and gets by with, this mockery and flagrant disregard for the integrity of land records and that makes me sick at my stomach.

So far, I have found no state information to investigate that signature requirement further. I'm still trying, but haven't figured out where to look. It's probably insignificant in court anyway.


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