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.
MERSCorp today issued its Announcement 2011-1 (16 Feb 2011) which, amongst other things indicates an intention to alter its MERSCorp Rules to PROHIBIT MERS members from filing suit in MERS' name.  The announcement is posted here:


The current MERSCorp Rules of Membership are here:

MERSCorp Rules of Membership


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Angelo

I love this!!!!  If you read the memo, there is desperation in the air.  This came out just 5 days after that stunning ruling in NY.  I truley find this amusing, that now they want to get all their corporate resolutions right....hahaha

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Bill

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MERS Members shall have a MERS Certifying Officer (also known as MERS Signing Officer) execute assignments out of MERS’ name before initiating foreclosure proceedings.  Assignments out of MERS’ name should be recorded in the county land records, even if the state law does not require such a recording (seeMERS Membership Rule 8). 



It looks like MERS is trying to totally separate themselves from any kind of litigation.  I do wonder why they did not include the bankruptcy relief from stay in this announcement. 

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DT

Problem for MERS is it still doesnt change the fact that MERS is the nominee for the owner, so they still dont have the authority to transfer the mortgage.  I will fight that in court all day long. 

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Sinking Ships
They are going to be bizzzzeeeeeeeeeeee...

http://www.mypublicnotices.com/Idahostatesman/PublicNotice.asp?Page=PublicNotice&AdId=2258061
"FIDELITY NATIONAL TITLE INSURANCE, as Trustee, for the benefit and security of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Beneficiary, dated 7/21/2006, recorded 7/26/2006, under Instrument No. 106119485, Mortgage records of ADA County, IDAHO, the beneficial interest in which is presently held by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.."

http://ma.mypublicnotices.com/PublicNotice.asp?Page=PublicNotice&AdId=2245200
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. Present holder of said mortgage By its Attorneys, HARMON LAW OFFICES, P.C. 150 California Street Newton, MA 02458 (617) 558-0500 201005-0959

http://www.mypublicnotices.com/BayAreaNewsGroup/PublicNotice.asp?Page=PublicNotice&AdId=2260535
n favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC, as Beneficiary, WILL SELL AT PUBLIC AUCTION TO THE HIGHEST BIDDER, in lawful money of the United States, all payable at the time of sale, that certain property situated in said County, California describing the land therein as: AS MORE FULLY DESCRIBED IN SAID DEED OF TRUST The property heretofore described is being sold "as is". The street address and other common designation, if any, of the real property described above is purported to be: 210 REFLECTIONS DRIVE # 16, SAN RAMON, CA 94583 The undersigned Trustee disclaims any liability for any incorrectness of the street address and other common designation, if any, shown herein. Said sale will be made without covenant or warranty, express or implied, regarding title, possession, or encumbrances, to pay the remaining unpaid balance of the obligations secured by and pursuant to the power of sale contained in that certain Deed of Trust (together with any modifications thereto). The total amount of the unpaid balance of the obligations secured by the property to be sold and reasonable estimated costs, expenses and advances at the time of the initial publication of this Notice of Trustee`s Sale is estimated to be $277,573.76 (Estimated), provided, however, prepayment premiums, accrued interest and advances will increase this figure prior to sale. Beneficiary`s bid at said sale may include all or part of said amount. In addition to cash, the Trustee will accept a cashier`s check drawn on a state or national bank, a check drawn by a state or federal credit union or a check drawn by a state or federal savings and loan association, savings association or savings bank specified in Section 5102 of the California Financial Code and authorized to do business in California, or other such funds as may be acceptable to the trustee. In the event tender other than cash is accepted, the Trustee may withhold the issuance of the Trustee`s Deed Upon Sale until funds become available to the payee or endorsee as a matter of right. The property offered for sale excludes all funds held on account by the property receiver, if applicable. DATE: February 17, 2011 FIDELITY NATIONAL TITLE COMPANY, TRUSTEE 135 Main St. Ste. 1900 San Francisco, CA 94105 415-247-2450 Elida Rosado Authorized Signature SALE INFORMATION CAN BE OBTAINED ON LINE AT http://www. lpsasap.com

http://nh.mypublicnotices.com/PublicNotice.asp?Page=PublicNotice&AdId=2253013
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC By its Attorneys, Wayne E. George, Esquire, HARMON LAW OFFICES, P.C. 150 California Street Newton, MA 02458 (603) 669-7963 201005-1685 - RED (UL - Feb. 11, 18, 25) 201005-1685 FCL /Notice of Sale

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William A. Roper, Jr.
HousingWire gives us a nice treatment of this development:

HousingWire: "MERS to members: Don’t foreclose in our name", by Kerry CURRY (Thursday, February 17th, 2011, 10:05 am)
http://www.housingwire.com/2011/02/17/mers-to-members-don%e2%80%99t-foreclose-in-our-name


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William A. Roper, Jr.
Freddie Mac has implemented new guidance consistent with the proposed MERS Rule change:

Housing Wire: “Freddie Mac tells servicers not to foreclose in MERS name” (March 24, 2011)
http://www.housingwire.com/2011/03/24/freddie-mac-tells-servicers-not-to-foreclose-in-mers-name


The announcement (No. 2011-5) in Freddie Mac’s Bulletin dated March 23, 2011, is here:

http://www.freddiemac.com/sell/guide/bulletins/pdf/bll1105.pdf


Fannie Mae had prohibited its servicers from suing in MERS' name within "Announcement 06-24" on December 7, 2006:

https://www.efanniemae.com/sf/guides/ssg/annltrs/pdf/2006/0624.pdf



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David
 I still don't see in MERS' Terms and Conditions wherein it states that it has no interests in  mortgage Notes?
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William A. Roper, Jr.
Quote:
David said:
I still don't see in MERS' Terms and Conditions wherein it states that it has no interests in mortgage Notes?


David:

See the MERS Appellant's Brief in the case MERS v. Nebraska Dept. of Banking and Finance:

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


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William A. Roper, Jr.
David:

Also, with respect to the "MERS Terms and Consitions", I would call your express attention to the language appearing within paragraph 3, which reads:
"MERS shall at all times comply with the instructions of the holder of mortgage loan promissory notes.  In the absenceof contrary instructions from the note holder, MERS shall comply with instructions from the Servicer shown on the MERS® System in accordance with the Rules and Procedures of MERS." 
See:

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


This language reflects the fact that MERS is NOT the holder of the promissory note.  Why would MERS or the Member need to include language specifying that MERS would comply with the instructions of the holder if MERS was the holder?
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Bill
I understand the strength of the appellate brief from MERS in this case.  But as we discussed in previous threads the challenge is getting this breif admitted because of the refusal to issue certified copies (I have called the clerk and while she was willing to email me the breif she said they do not issue certified copies). 

Do you think the decision, which could be used in a pleading, is strong enough to get this point across?

http://caselaw.findlaw.com/ne-supreme-court/1016162.html


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William A. Roper, Jr.

Bill:

While I believe that the strongest authentication would be to present the document to MERS for authentication within an interrogatory OR as an exhibit to a deposition on written questions, I believe that a defendant should also be able to get it into evidence by presenting it with an affidavit showing that the copy of the brief furnished to the court was obtained directly from the Clerk of the Nebraska Supreme Court, that it is the very doument furnished by the Clerk, and that the Clerk does not furnish certified copies.

It would probably be better to write to the Nebraska Supreme Court and to ask for a certified copy.

If you can get them to send you a letter stating that they do not give out certified copies, I think that could help, too.   It shows that you TRIED TO GET a certified copy, but that this wasn't a possibility. 

I would include the receipt for payment of the copy, the original or a color copy of the mailing envelope from the Clerk transmitting the brief and possibly even a copy of the cancelled check remitting payment.  That sort of supporting documentation laces things up fairly nicely further confirming the facts recited within your affidavit of authenticity.

*

Even so, there is some value in presenting the brief as an exhibit to an interrogatory to the plaintiff (other than MERS).  While the plaintiff will almost certainly object and then DENY any knowledge or awareness of the MERS Appellant's Brief (they can probably validly claim to have no knowledge as to the authenticity of the brief), this can still be helpful for two reasons.

First, IF they were to later investigate in any way and to develop some doubts or suspicions as to its authenticity, they might have a duty under the rules to supplement their response to explain their doubts or misgivings and in failing to do so might be precluded from introducing such arguments.

Second, and perhaps more importantly, you can thereby show that you had presented the document to the plaintiff well in advance of the summary judgment hearing or trial and afforded the plaintiff an opportunity to investigate teh authenticity of the document.

So even though presentation of the MERS Appellant's Brief may not yield you an affirmative authentication or an admission as to its validity, it makes it much more difficult for the plaintiff to object to the document as an exhibit and to deny its authenticity later.  (Where a defendant is not tightly constrained as to the number of interrogatories or admissions, I would suggest asking for authentication both within an interrogatory AND as a request for admission.)

Bear in mind that the discovery rules (particularly requests for admissions) are intended to help to narrow and focus the issues, dispensing with the necessity of proof of uncontested matters.  By seeking authentication, you show your good faith efforts to make a timely presentation of the evidence to the opposing side, giving them ample opportunity to confront and impeach such evidence IF THEY CAN.  Under the rules in most places, the party responding to a request fro admissions has some duty to admit matters known to be true to minimize the cost of proving such a matter.

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Be sure to check the Rules of Evidence for YOUR jurisdiction to ascertain the requisites for admissibility.  These VARY from jurisdicition to jurisdiction.

While it would be better if one could obtain a certified copy of a document, there will always be many instances where one cannot do so.  For example, if I sent you a letter.  You could validly authenticate that you had received such a letter in the mail, etc.  You couldn't testify that I had SENT the letter.  But your identification that this was the letter you had RECEIVED would be rather persuasive.

While I could certainly deny sending the letter, it this was UNTRUE, I would do so at my peril.

And once you put that letter into evidence with your authentication of its receipt, the burden would usually shift to the other side to show that the document was not what it was purported to be.

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The existence and introduction of the Supreme Court's published decision in the Nebraska case is certainly rather persuasive supporting evidence of the authenticity of the brief.  The existence of the published decision shows rather conclusively that there was a case before the Nebraska Supreme Court of the style, parties and case number shown on the Appellant's Brief.  Moreover, the fact that the decision is consistent with the facts and allegations set forth within the brief gives it further weight and authenticity.

Bear in mind that in most places attorneys have some duty under the rules to present only those arguments which can be made in good faith.  While the ethical bankruptcy of the foreclosure mill law firms makes it especially important to dot the "i"s and cross the "t"s, I wouldn't become overly concerned that the plaintiff will succeed in excluding a document which was obtained directly from the Clerk of the Nebraska Supreme Court, is authenticated by a valid affidavit and which was presented to the plaintiff for autnetication well in advance of hearing or trial.

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I WOULD caution against someone merely downloading a copy of the brief from the Internet and seeking to use the downloaded copy.  Let's face it.  Documents found on the Internet are or uneven quality and authenticity.  If someone hand carrried a downloaded copy into court without an authenticating affidavit, I would expect that there is more than a little peril that the document might be excluded, particularly if furnished as summary judgment evidence.  Follow the Rules of Civil Procedure and the Rules of Evidence and you should be fine!

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