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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Angelo
MERS brings in all the big guns and gets stopped dead in its tracks again!!  This is all falling apart very soon in NY, lets see mers put this published opinion up on their website, instead of the unpublished one.

They cannot prove any agency or nominee relationship from the original lender to MERS.  It doesn't exsist because the "original" lender didnt lend anything, they were just used as a straw man for the real transcation. Which will never be made public because they are all TILA violations.

http://www.nycourts.gov/reporter/3dseries/2011/2011_50547.htm
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The Equitable One
That is a nice decision. The court deliberated and researched well, and included some good language in its decision.
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William A. Roper, Jr.
Within the Alderazzi decision the Court mentions MERS' Terms and Conditions and the MERSCorp Rules of Membership.  These have been posted at the MS Fraud Legal Lounge for several years.  I have also posted copies at my Scribd pages.  Take a look at these and read the decision within the context of these documents:

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

 

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

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William A. Roper, Jr.
Although this decision seems not currently slated for publication within the written New York reports, it is still considered to be a published decision under NY law.  It should be cited as:

Bank of NY v Alderazi, 2011 NY Slip Op 50547(U) [Sup Ct, Kings County 2011].

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Bill
Could someone clarify what kind of decision this is for me.  Is this a trial court decision subject to appeal or a decision from a higher court?  I didn't know they published trial court decisions. 


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William A. Roper, Jr.
Bill:

This is a published decision of a trial court.  In several states, including New York and Pennsylvania, some decisions of trial courts are "published" and have some precedential value IN THAT STATE.

A decision of one trial court wouldn't usually be binding on another trial court, even in the same jurisdiction, but could be cited as both explanation and authority for the holding.  Where some arcane or unusual legal principle was discussed in one case, by simply referring to the decision, a judge can abstract that court's reasoning and embrace it by reference.

By contrast, a decision of the intermediate appellate court for a "department" in New York would have some binding precedential value for the trial courts within that "department" and decisions of appellate courts in other departments, while not binding would be far more persuasive than a decision of another trial court.

In New York State, a decision of the highest court, the Court of Appeals, would be binding precedent everywhere.

*

For those in other states, the NY cases are never binding authority (EXCEPT where another state is BOUND to use NY law in its decision, as in an instrument negotiated in NY OR determination of the law as to a NY trust) but might be viewed as influential or persuasive on some particular point of law.  Under the Rules of Evidence of many jurisdictions, Courts are allowed to take judicial notice of published opinions of other jurisdictions.  To get a court to consider an unpublished decision, one would typically need to obtain a certified copy of the decision.  Even with a certified copy, which would make the decision admissible, the courts of another jurisdiction would usually NOT be bound as to the holding and the unpublished decision would tend to get very little weight, particularly if the unpublished opinion was of another trial court.

I would never tend to cite an unpublished trial court case unless the party plaintiff and facts of that case were essentially identical to the case at bar.  Even then, I would expect the decision to be of little moment to the Judge deciding the case.

NOTE:  I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE! 
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William A. Roper, Jr.
I have posted the MERS assignment from the Alderazi decision at Scribd.  It illustrates the precise language of the assignment found to be deficient:

http://www.scribd.com/doc/56666181/Kings-County-MERS-to-Bank-of-NY-Assignment-of-23-Jul-2008-Bank-of-NY-v-Alderazi

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Texas
Have a question?

As this thread mentions the MERS Membership Agreement and Rules was brought to notice within the court. Would this Membership Agreement along with possible other MERS contracts constitute "Actual Notice"?

Would "Actual Notice" be as similar to "Constructive Notice" in public records affect the status of "Bona Fide Purchaser"?



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William A. Roper, Jr.

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Texas said:

Have a question?

As this thread mentions the MERS Membership Agreement and Rules was brought to notice within the court.  Would this Membership Agreement along with possible other MERS contracts constitute "Actual Notice"?

Would "Actual Notice" be as similar to "Constructive Notice" in public records affect the status of "Bona Fide Purchaser"?


Texas:

I am unclear what you are asking.

Actual notice usually means that someone ACTUALLY KNOWS some particular fact.  Constructive notice usually means that person can be charged with notice either because the law imposes a duty upon a person to make certain inquires OR a reasonably diligent person OUGHT TO HAVE MADE such inquiries.

A purchaser is usually charged with constructive notice of the recorded land records.  In many places, a buyer might have constructive notice of the interest of a person actually residing on or occupying the property, though this could get more fact dependent.  For example, if Smith has a deed, but fails to record, but is actually residing on property Blackacre, with a large sign at the front gate that says "Smith Ranch" and Smith is shown on the tax rolls as the owner, this might impose a duty of inquiry in some jurisdictions as to what sort of interest Smith claims in the property.  (In "race" statute states this wouldn't usually matter.)

A person might also be deemed to somehow have constructive notice of legal notices published within a newspaper of general circulation in his area of residence, though historically, one could scarcely charge a person with constructive notice of newspaper ads in faraway or foreign places.  One could argue that the Internet has brought everyone closer, but even IF I can access the local newspaper for Nome, Alaska from tehconvenience of my keyboard, I can hardly be charged with constructive notice of what happens in Nome, because the Internet is so vast and information so abundant that even given ease of accessibility, this cannot imply a duty to explore and read EVERYTHING (which would be an impossibility).

A third kind of notice would be judicial notice.  A court can usually take judicial notice at the request of a party OR sua sponte.  The requisites of judicial notice vary from place to place.  A key issue is the reliability of the information.

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Texas
Let's make it a little more clearer.
If you had actual or constructive notice that law was not followed, would you still be a Bona Fide Purchaser?

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Angelo
Bill

Are the MERS by-laws the same as the terms and conditions or the rules of membership?

I was wondering if I can get a copy of the By-laws.
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William A. Roper, Jr.
Texas:

Without researching the issue and recognizing that there could be differing outcomes if different jurisdictions, I am inclined to believe that one can be a bone fide purchaser even if one had some notice as to failure to follow some law or laws.  HOWEVER, I think that this is also a very fact dependent question.

Suppose for example, that a failure to follow the law involved some defect in recording, which is not strictly required in all jurisdictions.  Compare this with the result that one fools or coerces a person to execute a deed and then shoots him in the back (e.g. "The Sons of Katie Elder").

Criminal activity that involved culpable fraud on the part of the buyer would seem to me to generally preclude a finding that someone was a bona fide purchaser.  By contrast, if I knew that you had been operating a still on the land or that you had failed to mow your lawn in conformance with local ordinances seems unlikely to implicate me in the seller's misconduct.

*

With respect to the strength of title, one usually needs to expressly look to the precise wording of the recording statute for a jurisdiction and the cases on that statute to understand the dimensions of title issues and question.

In a "race" state, someone with a recorded deed and a strong chain of title is usually in a pretty strong position to defend their title absent a showing for fraud or a determination that the deed was VOID.

In a "notice" state, there are inherently more ways that a person might find a conveyance challenged, absent a showing of fraud on teh part of the person with the competing deed or interest.

*

If you are asking whether a purchaser could be charged with notice of a copy of the MERS Terms and Conditions or MERSCorp Rules of Membership posted at the Scribd site, I would think not.  If you are asking whether a court might take judicial notice of a copy of these documents, I think that the answer is "maybe".  I would think that one would fortify the web posting with allegations showing that these documents had been admitted and considered in Courts elsewhere, showing the published decisions.

But I would think that the better practice would be to get the documents authenticated using discovery.
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William A. Roper, Jr.
Texas:

I think that the bona fide as to purchaser usually pertains to purchase for value by a person really taking title and ownership (as opposed to a straw or nominal buyers or those failing to give consideration).

My recollection is that the statutory language of some recording acts talks about a "purchaser for value, without notice, etc.".  The inclusion of the "without notice" would, in my view distinguish that one could be a bona fide purchaser with notice of a competing claim.  Whether the notice defeats the interest would largely be dependant upon the wording of the recording statute.

By contrast, one could have no notice of the competing claim and recieve a deed of gift.  One could be completely innocent of knowledge of the the competing interest, but have an interest as other than a bona fide purchaser.

*

I am still not sure where you are going with this and absent a clearer idea of some utility am disinclined to undertake any research on the question.  I do not mean this in a harsh or hostile way, but just wouldn't choose to allocate my time to further explore it absent some more compelling articulation of the point.

Once again, I think that results are both jurisdiction and fact dependent.
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William A. Roper, Jr.
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Angelo said:
Are the MERS by-laws the same as the terms and conditions or the rules of membership?

I was wondering if I can get a copy of the By-laws.


Angelo:

I have never seen the MERSCorp or MERS corporate by-laws.  These seem to me to be likely to be different than the MERSCorp Rules of Membership.

In many states, the highest level of corporate governance is the article of incorporation.  These are sometimes publicly filed.

In most places, the by-laws are NOT required to be filed as public records.  Whether there is some public entity that has REQUIRED the filing, is unknown to me, but seems somewhat unlikely.

Where MERS is a party, you could seek to obtain these through discovery.  MERS will no doubt object and I am unsure that you could get a judge to order their production.  I am UNCLEAR what value you hope to obtain thereby.

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Angelo

There was a decision from another state that indicated that the MERS by-law state, the corporate resolutions which authorize the signing officers to sign on MERS behalf must be signed off by the board of directors and if they weren't the the corporate resolutions are invalid.  Just trying to see if that is true.

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Texas
A transferee who takes property with knowledge of such facts as would excite the suspicions of a person of  ordinary prudence and put him on inquiry of the fraudulent nature of an alleged transfer does not take the property in good faith and is not a bona fide purchaser. See Wright v. Lynn, 16 Tex. 34, 1856 WL 4851, at *5 (Tex. 1856) (holding that lack of good faith is proved by any "competent means, which affords any fair presumption or inferences as to the real object and intention of the parties, tending to show knowledge of "the fraudulent acts and intentions of the [transferor]"); First S. Props., Inc. v. Gregory, 538 S.W.2d 454, 457-58 (Tex. Civ. App. 1976) (holding that transferee without actual or constructive notice of circumstances tending to show
fraudulent intent of transferor is bona fide purchaser); see also Flores, 161 S.W.3d at 756 (defining good faith as lack of awareness of transferor's intent).
Notice of fraudulent intent can be either actual or constructive. See Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001); First S. Props., 538 S.W.2d at 457-58. Actual notice results from personal information or knowledge; constructive notice is notice the law imputes to a person not having personal information or knowledge. Madison, 39 S.W.3d at 606; see Carr v. Hunt, 651 S.W.2d 875, 880 (Tex. App.--Dallas 1983, writ ref'd n.r.e.) (finding no notice of actual knowledge of fraudulent acts or facts that would have put purchaser of property on further inquiry as to possible claims of fraud). http://www.texas-opinions.com/law-bona-fide-purchaser.html
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William A. Roper, Jr.
Texas:

How would you distingush or differentiate the Texas court holdings from my extemporaneous and unresearched response?
 
How would you make out an argument relating to bona fide purchaser in consideration of what you have now learned?

I am still failing to see the application of these principles to ordinary cases.
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