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.
The Court of Appeals for Florida's Fifth District announced its decision in Taylor v. Deutsche Bank Nat'l Trust Co., yesterday (Friday, August 6, 2010), and unfortunately the decision is a loss for Appellant Taylor and a victory for Deutsche Bank and MERS.  This decision is reported as:

Taylor v. Deutsche Bank Nat'l Trust Co., Case No. 5D09-4035, COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 2010 Fla. App. LEXIS 11431, August 6, 2010, Opinion Filed.

The opinion may be found for free at the LexisOne site and can also be found at the Fifth District site:

http://www.5dca.org/Opinions/Opin2010/080210/5D09-4035.op.pdf


*

It appears to me that the defendant in Taylor, as in so many other cases failed to get into the record the single piece of evidence that almost universally defeats MERS.  That is the Appellant's Brief in MERS v Nebraska Dept. of Banking, wherein MERS judicially admits that it NEVER has any interest in the promissory note or any pecuniary interest in the alleged mortgage indebtedness.

Appellate Courts continue to rule in favor of MERS based upon false factsDefendants need to get the CORRECT FACTS into evidence.

Unfortunately, well meaning attorneys appealing trial court decisions in favor of MERS where the false facts were allowed into evidence unrefuted are creating a body of law very favorable to MERS through decisions based upon these false facts.

*

See also my prior post from 01/28/08 at 05:04 PM within the thread "MERS Info needed".
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The Equitable One
I've read the brief in MERS v Nebraska Department of Banking. It is beyond belief that MERS is able to win any cases in light of what MERS admits in that brief.

I'm disappointed to learn of this loss in the Florida 5th DCA. Weidner is certainly one of the "good guys" and has been working and advocating energetically for his clients. Hopefully he has the aforementioned brief at this point and will be able to use it advantageously in future cases.

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I was extremely disappointed in the decision.  Although, I must say that I expected this to be the outcome based on the line of questioning from the appellate judges. 

The judges focused on 2 very bad case laws - namely, Azize and Reverado.  In both of these cases, the attorney for MERS lied to the appellate judges when he stated that MERS held the notes.  This was an issue that the lower court judge Gordon hammered MERS on in the show cause hearing.  MERS could not respond and, in fact, stated that it did not hold the notes.  Yet, on appeal, MERS advised the court that it did hold the notes.  An assertion that went unchallenged. 

One other problem that Weidner had to overcome ws the fact that their was no record of the summary judgment arguments.  Therefore, it came down to "he said / she said."  This was also the main problem with the Riggs case.

The issue of holder vs. holder in due course is extremely important for foreclosure defense attorneys to nail.  In Florida, the term "holder" is very broad.  Just about anyone can be a "holder" even if you hold the note illegally.  The foreclosing entities in many instances rely on "possession."  They come to court with what appears to be the original note and claim that they are in possession, therefore, a transfer has occurred and this gives them standing in the foreclosure case. 

The real issue is whether MERS has the authoritiy to assign the mortgage and to a larger extent, the note in the first place.  Recent court rulings indicate that judges are beginning to take a much closer look at the definition of "nominee."  This is something not addressed by the 5th DCA.  I believe this was not addressed because th 5th DCA relied heavily on Azize and Reverado which define MERS as a modern innovation.  The 5th DCA was not told that the information on the MERS system is entered by its members, not by MERS.  Therefore, any member of MERS can access the computer database and alter any information on the database.  MERS does not have any fail-safe method to deter these actions.  This information has to be brought forward in the courts - MERS does not enter info into their computer database, the members do.

MERS is simply a huge database subject to the actions of its members. 

In Florida, a Supreme Court decision re MERS is needed.  However, I do not believe Taylor would be the correct case.
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I am just a messenger here. Ann
--------------------------------------------------------------------------
Subject: Re: Taylor vs Deustche Bank Appeal

I wrote the Taylor appeal.  I respond to the following comment - 

It appears to me that the defendant in Taylor, as in so many other cases failed to get into the record the single piece of evidence that almost universally defeats MERS.  That is the Appellant's Brief in MERS v Nebraska Dept. of Banking, wherein MERS judicially admits that it NEVER has any interest in the promissory note or any pecuniary interest in the alleged mortgage indebtedness. 


The Taylor Initial Brief, at page 26 stated:


The Opposition (Taylor's Opposition to MSJ) stated in relevant part:

MERS has nothing to transfer by an assignment. MERS own website listed “MERS Recommended Foreclosure 
Procedures for FLORIDA”.7  
(fn 7 http://www.mersinc.org/filedownload.aspx?id=176&table=ProductFile)  

In this document MERS states that it is not the beneficial owner of the promissory note. This document states:

MERS stands in the same shoes as the servicer to the extent that it is not the beneficial owner of the promissory note. An 

investor, typically a secondary market investor, will be the ultimate owner of the note. (fn 8)

Foot Note 8:

Even though the servicer has physical custody of the note, custom in the mortgage industry is that the investor (Fannie Mae, Freddie Mac, Ginnie Mae or a private investor) owns the beneficial rights to the promissory note.

(R. I/177-178)


At page 27 it stated:


In LaSalle Bank NA v. Lamy, 824 N.Y.S.2d 769 (N.Y. Supp. 2006), the Court denied a foreclosure action 

by an assignee of MERS on the grounds that MERS itself had no ownership interest in the underlying note and mortgage.

In the case of In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev., 2009), the Court stated “In order to foreclose, 

MERS must establish there has been a sufficient transfer of both the note and deed of trust, or that it has authority under 

state law to act for the note's holder.” (At page 9) The Court found that MERS has no ownership interest in the promissory note.


At page 28 it stated:


In the case of In re Vargas, 396 B.R. 511, 520 (Bankr.C.D.Cal., 2008) , the Court stated:

MERS is not in the business of holding promissory notes. (fn 10: MERS, Inc. is an entity whose sole purpose is to act as 

mortgagee of record for mortgage loans that are registered on the MERS System. This system is a national electronic registry 

of mortgage loans, itself owned and operated by MERS, Inc.'s parent company, MERSCORP, Inc.)

In the case of In re Sheridan, Case No. 08-20381-TLM (Bankr.Idaho, 2009) MERS moved for relief from the stay. The Court 
stated that MERS “Counsel conceded that MERS is not an economic “beneficiary” under the Deed of Trust. It is owed and will 
collect no money from Debtors under the Note, nor will it realize the value of the Property through foreclosure of the Deed of 
Trust in the event the Note is not paid.

At page 29 it stated:

In Landmark National Bank v. Kesler, 216 P.3D 158 (Kansas, 2009), the Kansas Supreme Court extensively analyzed the position 
of MERS in relation to the facts in that case and other non-binding court cases and concluded that MERS is only a digital mortgage 
tracking service. (At page 168) The Court recited that MERS never held the promissory note, did not own the mortgage instrument 
(though the documents identified it as “mortgagee”), that it did not lend money, did not extend credit, is not owed any money by the 
mortgage debtors, did not receive any payments from the borrower, suffered no direct, ascertainable monetary loss as a consequence 
of the litigation and consequently, has no constitutionally protected interest in the mortgage loan.

The Taylor appeal was pro bono.  Greg Clark, Matt Weidner and other's donated many many hours ramping up for oral argument.
They did many conference calls with the best legal minds, tweaking their positions over and over.  They were as prepared far beyond 
anyone's expectations.  I know of no one who could better them - no one.  To all those who have been made sickened by this appeal - to 
all the Monday morning quarterbacks, I offer this challenge - pick up the ball and file for rehearing yourselves.  Taylor would be happy with it.  Anyone who is approved by Greg Clark and Matt Weidner to write can file a Notice of Appearance.

George Gingo
Gingo & Orth

Mims
3239 N. Hwy. 1
Mims, Florida  32754
Office: (321) 264-9624
Fax:    (866) 311-9573

Winter Park
2431 Aloma Avenue,
Suite 241, 
Winter Park, FL  32792
Office:  (407) 376-1400
Fax:      (407) 358-5356

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Again, I am the messenger... Ann
            ----------------------------------------
 
George,
 
I don't think anybody doubts the hard work that went into preparing and arguing the case and appeal.  I also think the lawyers involved did a stand up job considering what they had to work with.    
 
IMHO, what defense lawyers need to take out of this is that if a case is going to be appealed, it MUST be the right case.   I do not believe the Taylor case was the best case to appeal. 
 
We must all pay particular attention to the necessity of creating a clear record for appeal, especially considering the detrimental and far reaching impact a negative decision would undoubtedly have on every homeowner in the state and every attorney fighting to protect the interests of those homeowners.  We owe that to each other.
 
Regards,

Andrew D. Tarr, Esq.


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George:

While I have not read the appellate briefs in the Taylor case, I watched the posted video of the oral arguments.  Generally, I thought that the attorneys for the Appellant argued very ably and articulately.

But quoting the law which appears within the MERS v Nebraska Dept. of Banking case or citing law and facts developed in other cases is not the same as getting the admitted FACTS about MERS and its business properly admitted into evidence in the trial court!

If the record isn't properly established in the trial court, then the record and issues available in the appeal are impaired.  The prior Florida MERS appeals were lost due to the failure to get correct facts into the record.  This happened in large part because the cases being appealed were decisions entered at the circuit court sua sponte.

Several years ago, I called April Charney and suggested that she take a look at the Appellant's brief in the Nebraska case.  She admitted to me that she hadn't ever seen this brief, but upon learning that I was a non-attorney, representing myself pro se, rather than accepting the copy of the brief that I was voluntarily offering to send her, she cut me off and told me that I needed to employ a lawyer.  Four years later, she is still fighting (and mostly losing) foreclosure cases.  But I haven't lost a foreclosure case, nor will I.

As far as I know, no attorney has yet brought the Nebraska appellant's brief in as evidence.  I am NOT talking about merely citing the decision in the Nebraska case.  I am talking about getting the brief admitted as evidence and then using it to eviscerate the plaintiff's case.

By contrast, I know of only two pro se litigants who have made use of the appellant's brief in Nebraska.  One recently settled on terms she apparently found satisfactory, the terms of which are unknown to me.  The other has withstood a suit in the trial court for four years without an adverse judgment.  The plaintiff's motion for summary judgment in the latter case has not been ruled upon by the court, but it is essentially IMPOSSIBLE for the court to rule for the plaintiff given the factual record.  In this latter case, it now appears likely that the case will ultimately be dismissed and that the defendant will own the property free and clear of any alleged mortgage liens.

In short, I know of only two litigants which have used the strategy suggested in my post.  And neither have lost!  One appears poised to absolutely win, not merely postponing a judgment, but rather actually defeating the suit and extinguishing the claim.

The critique is not related to the skill of the Taylor appeal, but rather of the necessity and desirability of getting the Nebraska brief admitted into evidence.

If you do not have a copy of the Nebraska brief and have not read it, then please do not strive to justify the failure to plead this document into the defensive record in a summary judgment opposition or at trial.
 
If you have read the brief, then please post comments responsive to the recommendation that it be used in evidence.

*

I certainly am UNABLE to accept your challenge to assist Taylor.  I am NOT an attorney and am therefore unqualified and ineligible to represent Mr. Taylor, or any other person, in any legal matter.  Several of the others who have posted are also non-attorneys and similarly cannot accept your challenge either.

One thing that DOES distinguish the other pro se Forum participants who posted critical comments in this thread is that they HAVE read the Appellant's Brief in the Nebraska case.

After watching the oral arguments in Taylor, I e-mailed Matt Weidner to suggest that he read MERS' Appellant's Brief in Nebraska.  I offered to send him a copy (I do not send file attachments to recipients on an unsolicited basis.)  He didn't reply to my message.

Perhaps he HAS read the brief and is just too busy to respond.  More likely, he hasn't read the brief, and like April Charney, has foreclosed on the possibility that a pro se litigant might actually have a good idea!

(Oh, by the way, this pro se litigant served as the President of a mortgage company for two years and was a teaching assistant for three semesters for the course in the law of real estate finance at the Wharton School.  But I am NOT an attorney and cannot and do not practice law.)
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George,

I do believe that you and Matt and everyone else invovled in this case did a great job.  Your arguments were right on. 

As I stated, I believe the real problems were threefold: (1) no trial record, (2) the 5th DCA relied on Azize and Revoredo - which I believe to be truly bad case law, and (3) holder v. holder in due course. 

It appears that Florida courts truly do not know the distinction between holder and holder in due course.  Case in point is the new Administrative Order for Orange County which requires that the plaintiff prove it is the owner of the note and holder in due course in order to conduct mediation.  Here is a link to that Admin Order:  http://www.ninthcircuit.org/programs-services/foreclosures/Downloads/AO2009-02.pdf

Not to sound like I am on the side of the foreclosing entities, but Florida law does not require a foreclosing entity to prove it is holder in due course.  However, it does require a foreclosing entity to prove it is holder. 
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Ann
Is it possible to post a complete copy of the brief, not just excerpts.  Thanks in advance.
angelo
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It is instructive to review some of the key language appearing within MERS' Appellant's Brief to fully appreciate the extent to which simply getting this document admitted into evidence eviscerates any case in which MERS is the plaintiff OR where a plaintiff claims to hold the promissory note based upon a FALSE assignment of the promissory note by MERS to the plaintiff.  Below are actual excerpts from the MERS' Appellant's Brief:

“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]

*

You will not find corresponding judicial admissions by MERS or conclusions of law in court decisions in any other case which show with with similar force and clarity that MERS is never the owner of the promissory note and that MERS has no economic interest in the promissory note and mortgage indebtedness.  All assignments made in MERS' name which purport to convey "MERS' interest" in the promissory note and mortgage indebtedness are at a minimum false business records and in many states may constitute statutory forgeries (read the forgery statutes in the state of execution and in the state where the subject property is located).

Moreover, none of these (documents purporting to convey an interest in the promissory note which MERS never owns) are documents created in the ordinary course of business, but rather are false records created solely for use as false evidence in court cases.

This needs to be pled and proven into the record in the trial court.  Trying to make this argument for the first time on appeal based solely upon other case law and seeking merely judicial notice of public records (on appeal) is pure folly
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William A. Roper, Jr.

Pleading that the MERS assignment is a forgery is perhaps not as compelling in Florida as it may be in other places, which may be one reason that certain contract forgers and perjurers have chosen to locate operations in that state.  But it helps to be aware of the boundaries which delineate forgery in Florida.  Take a close look at the Florida forgery statute says:

831.01  Forgery.--Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as a legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.--s. 1, ch. 1637, 1868; RS 2479; s. 6, ch. 4702, 1899; GS 3359; RGS 5206; CGL 7324; s. 1, ch. 59-31; s. 1, ch. 61-98; s. 959, ch. 71-136; s. 32, ch. 73-334.

831.02  Uttering forged instruments.--Whoever utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in s. 831.01 knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.--s. 2, ch. 1637, 1868; RS 2480; GS 3360; RGS 5208; CGL 7326; s. 2, ch. 59-31; s. 2, ch. 61-98; s. 960, ch. 71-136.

See, generally:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0831/titl0831.htm&StatuteYear=2009&Title=%2D%3E2009%2D%3EChapter%20831

*


Compare the Texas forgery statute:

Sec. 32.21.  FORGERY. 

 

(a)  For purposes of this section:


(1)  "Forge" means:


(A)  to alter, make, complete, execute, or authenticate any writing so that it purports:

(i)  to be the act of another who did not authorize that act;
(ii)  to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii)  to be a copy of an original when no such original existed;
(B)  to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or
(C)  to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B).
(2)  "Writing" includes:
(A)  printing or any other method of recording information;
(B)  money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
(C)  symbols of value, right, privilege, or identification.
(b)  A person commits an offense if he forges a writing with intent to defraud or harm another.
(c)  Except as provided by Subsections (d), (e), and (e-1), an offense under this section is a Class A misdemeanor.
(d)  An offense under this section is a state jail felony if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check, authorization to debit an account at a financial institution, or similar sight order for payment of money, contract, release, or other commercial instrument.
(e)  An offense under this section is a felony of the third degree if the writing is or purports to be:
(1)  part of an issue of money, securities, postage or revenue stamps;
(2)  a government record listed in Section 37.01(2)(C); or
(3)  other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person.
(e-1)  An offense under this section is increased to the next higher category of offense if it is shown on the trial of the offense that the offense was committed against an elderly individual as defined by Section 22.04.
(f)  A person is presumed to intend to defraud or harm another if the person acts with respect to two or more writings of the same type and if each writing is a government record listed in Section 37.01(2)(C).

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1991, 72nd Leg., ch. 113, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 189, Sec. 1, eff. May 21, 1997; Acts 2003, 78th Leg., ch. 1104, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 670, Sec. 1, eff. September 1, 2009.
See:

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.32.htm#32.21

.

Note that in many instances assignments created by mortgage servicers solely for use as evidence in foreclosure cases purport to transfer an interest in the promissory note and MERS NEVER holds an interest in the promissory note.  MERS does NOT authorize its members to create false business records in its name, even though it appoints employees of the servicer as its officers and fails to supervise or police the exercise of this authority.

If the creation of the record wasn't authorized by MERS, this could run afoul of §32.21(1)(A)(i).  Servicers sometimes seek to claim that the forged assignment isn't a forgery because it simply memorializes or reflects a transaction which previously took place.  But no negotiation or assignment of a promissory note by MERS to the servicer EVER TAKES PLACE.  So creating a record purporting to show such an assignment would seem to violate §32.21(1)(A)(iii) when the instrument is made or uttered in Texas.

*

New York has a provision of its penal code which expressly contemplates the filing of false records:


§ 175.30 Offering a false instrument for filing in the second degree.
    A person  is  guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains  a  false statement  or  false  information,  he offers or presents it to a public office or public servant with the knowledge or belief that  it  will  be filed  with, registered or recorded in or otherwise become a part of the records of such public office or public servant.
    Offering a false instrument for filing in the second degree is a class A misdemeanor.
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$PEN175.30$$@TXPEN0175.30+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=27627431+&TARGET=VIEW


See also:


§ 175.05 Falsifying business records in the second degree.
    A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
    1.  Makes  or  causes  a  false  entry  in  the business records of an enterprise; or
    2. Alters, erases, obliterates, deletes, removes or  destroys  a  true entry in the business records of an enterprise; or
    3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
    4.  Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.
    Falsifying business  records  in  the  second  degree  is  a  class  A misdemeanor.

See:

http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$PEN175.05$$@TXPEN0175.05+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=27627431+&TARGET=VIEW

*

The forgery laws vary considerably from place to place, so it is a good idea to check the law both in the place where the instrument was prepared or executed, as well as the place where the instrument was uttered (e.g. presented for recording or furnished into evidence).  I have seen case law in at least one state that a forgery of a deed or interest iin real property executed in another state is also a separate crime in the state where the property is located.

It is possible that a crime might even be committed in three or more jurisdictions.  I have seen assignments where the instrument shows on its face that the forgery was prepared by an attorney in Ohio, executed by contract forgers and perjurers in Minnesota and filed of record in Kentucky.

Also bear in mind that many states have statutes separately making it a crime to (a) prepare a false business record, (b) record a false instrument and (c) furnish a false or forged instrument into evidence in a court case.

When pleading forgery, you will need to carefully research the statutes and case law in your jurisdiction and other jurisdictions of preparation and execution of the forged instrument.  Simple conclusory statements and generalizations will never suffice.  You need to understand the elements of required proof and then proceed to make your arguments, based upon proven facts, in accordance with law.

But all of this needs to take place in the trial court and probably needs to be included in your answer or amended answer, as well as proven in your opposition to the plaintiff's motion for summary judgment.  Making the argument for the first time on appeal is almost never going to get much traction (though forgery, fraud and false pleading remains a valid basis to overturn a judgment in many jurisdictions).  Even where it is possible to set aside a judgment belatedly showing forgery, the standard of proof is usually going to be different than in simply interposing this defense in the trial court.

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The Equitable One
Mr. Tarr, through Ann, has expressed a truism: that there is a practical and legal wisdom involved in appealing these cases, and in choosing the best ones to appeal.

But no one I know that is being bullied by a bank cares about that. They (or we, as I am one also) care first only about making the bully stop bullying them (me). Only when that has happened will the people in the trenches be able to look upwards to more lofty (and worthy) ideals.

As Mr. Roper, et. al., have said the record in the trial court MUST be made effectively and completely. Failing to appropriately include the aforementioned MERS v Nebraska brief as evidence, on the record, seems a real misstep. In that brief MERS has offered up on a silver platter all the statements against interest any motivated, qualified attorney needs to prevail in what I expect would be a rather slam dunk fashion.



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Ah. Its nice to know about it..


real estate investing videos

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connect the dots
The frustration here is palpable.

One can always make the brief or appeal better, however, such criticisms, however valid  should not obfuscate the real problem.

The "engine" of the meltdown is the "GSE Business Model" which was called by George Soros and Henry Paulson "hopelessly conflicted", fatally flawed and simply does not work".

Everybody knows what Wal-Mart's Model is,  "always lower prices", Costco--'better goods at lower prices", Target--"fashion soft goods at lower prices", etc.

How many people know what the "GSE Business Model" is? Lawyers are typically not business people, nor are most pro-se litigants. This is a Model that in 1996 bought (FNMA)  94% of Bank of America's (same as all banks) total mortgage business---today, after the largest meltdown in history that number is 99%.

As a business person, upon learning of this shocking market dominance, I knew immediately that it was not a "free market". The GSE's had been dealt a competitive advantage by the government guarantee of their MBS securities. In exchange, the GSE's proffered "Guidelines" that all "Players" in the Model would adhere to (only one thing wrong here, nobody was auditing for compliance).

The GSE Model is sophisticated and run by the various players commencing with the various government officials issuing the "guarantee". Without the "guarantee" there would be no vehicle for the "players" to drive. Players are the politic ans, then the brokers, lenders, servicers, securitizers, foreclosure mills, etc. All supposedly on the same "team", however, all bound by the "Guidelines", one indemnified to the next by the boilerplate contractual language inherent in the "Guidelines". The Model is designed so that only in the work case scenario, that is, implosion, would the taxpayer have to be tapped. Barney Frank said a year and a half ago that "the GSEs would never cost the taxpayer a dime". We all know what happened, including the GSE's now having an "open Checkbook" to the US Treasury.

The quotes from Soros and Paulson are circa 2007. Why would any business person be involved with something that is "fatally flawed". As the Cajun puts it "it's the money stupid".

The Judiciary is dominated by their role as a "player" by ignoring  fundamental real property law in consideration of "the fees". One Ohio judge called it " the gift that keeps on giving" (foreclosure fees), "we remodeled the courthouse with $750,000 at little or no cost to the Taxpayers", defying all common sense and logic.

The lawyers and the litigants have to focus on the fatally flawed business model and it will not resolved until they do. When a business takes people's money without delivering the goods---they go to jail.

It is not a conspiracy, it is simply a business model "that simply does not work". All players in the Model must be held accountable, however, that will not happen until people recognize that the GSE's are not the solution----- they are the problem.

The good news is that if the litigants focus on the "GSE Model" , all players are tied to the contractual guidelines, one to another, by the "Guidelines" which are designed to protect the borrowers and the taxpayers. This is the lever that the litigants must pull.
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Margaret
I heard about the unfavorable decision in Taylor v. Deutsche Bank and at the time was not aware of the entire case. I do know that Attorney Weidner seemed quite upset about it though. I have emailed him in the past, I believe after Ann posted something on here and he was very responsive. I also sent him an email regarding this case as I felt really bad about his loss. You can really tell how much he cares about his cases/clients just by reading his posts.

I did not realize though that this case is pretty much a carbon copy of mine, except my bank is OneWest and there is no note or assignment that I am aware of. Anyway, I wanted to post the video in case anyone was interested in viewing it and have not seen it yet.

http://4closurefraud.org/2010/07/16/oral-arguments-video-5th-dca-hearing-gregory-taylor-v-deutsche-bank-national-trust/

I also saw that they filed for a rehearing, so it will be interesting to see what happens.
http://mattweidnerlaw.com/blog/2010/08/hot-off-the-presses-taylor-motion-for-rehearing/
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Sara
I hate hearing about this decision.  I thought Taylor had a real chance in the beginning.

I still think it's better to fight and not win rather than do nothing at all!

S
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Yes Hi, I am very interested in understanding what you are talking about and how to "pull that lever".  I have several foreclosures and am going after each one cause I knoe they are fraud. I sent a letter requesting them to show they are the "lender" and they responded by foreclosing.. Anywhoo I can see no greater problem nor any greater opportunity we have to bring change. They are all in on it and it is all on the record!!  Nice thing about being on the other side of the foreclosure is that they have already put all their cards (fraudulent documents) on the table (record). My stratagy is to take it apart peice by little peice adn make a separate case for each and every individual that partisapated, contributed, allowed or promoted all this including the Judges breach of public trust etc... Can you or this GSE (G????  S?????  E?????) sounds like government secret estate... can it help?  Understanding more of the innner workings always helps, so thank you ahead of time..
 all the best to the rest, a hug just because, coming in peace with bare arms and clean hands, reserving all power, not for sale or obligation, creator known as Colin-Derek


connect the dots wrote:
The frustration here is palpable.

One can always make the brief or appeal better, however, such criticisms, however valid  should not obfuscate the real problem.

The "engine" of the meltdown is the "GSE Business Model" which was called by George Soros and Henry Paulson "hopelessly conflicted", fatally flawed and simply does not work".

Everybody knows what Wal-Mart's Model is,  "always lower prices", Costco--'better goods at lower prices", Target--"fashion soft goods at lower prices", etc.

How many people know what the "GSE Business Model" is? Lawyers are typically not business people, nor are most pro-se litigants. This is a Model that in 1996 bought (FNMA)  94% of Bank of America's (same as all banks) total mortgage business---today, after the largest meltdown in history that number is 99%.

As a business person, upon learning of this shocking market dominance, I knew immediately that it was not a "free market". The GSE's had been dealt a competitive advantage by the government guarantee of their MBS securities. In exchange, the GSE's proffered "Guidelines" that all "Players" in the Model would adhere to (only one thing wrong here, nobody was auditing for compliance).

The GSE Model is sophisticated and run by the various players commencing with the various government officials issuing the "guarantee". Without the "guarantee" there would be no vehicle for the "players" to drive. Players are the politic ans, then the brokers, lenders, servicers, securitizers, foreclosure mills, etc. All supposedly on the same "team", however, all bound by the "Guidelines", one indemnified to the next by the boilerplate contractual language inherent in the "Guidelines". The Model is designed so that only in the work case scenario, that is, implosion, would the taxpayer have to be tapped. Barney Frank said a year and a half ago that "the GSEs would never cost the taxpayer a dime". We all know what happened, including the GSE's now having an "open Checkbook" to the US Treasury.

The quotes from Soros and Paulson are circa 2007. Why would any business person be involved with something that is "fatally flawed". As the Cajun puts it "it's the money stupid".

The Judiciary is dominated by their role as a "player" by ignoring  fundamental real property law in consideration of "the fees". One Ohio judge called it " the gift that keeps on giving" (foreclosure fees), "we remodeled the courthouse with $750,000 at little or no cost to the Taxpayers", defying all common sense and logic.

The lawyers and the litigants have to focus on the fatally flawed business model and it will not resolved until they do. When a business takes people's money without delivering the goods---they go to jail.

It is not a conspiracy, it is simply a business model "that simply does not work". All players in the Model must be held accountable, however, that will not happen until people recognize that the GSE's are not the solution----- they are the problem.

The good news is that if the litigants focus on the "GSE Model" , all players are tied to the contractual guidelines, one to another, by the "Guidelines" which are designed to protect the borrowers and the taxpayers. This is the lever that the litigants must pull.
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Yes, I have a question,,, in most if not in all cases (one of mine actually says it) arn't the notes supposed to be returned upon payment?? So then they have to find and return the Note.. right, I mean otherwise the "IOU" is still out there to be used again. And as I say it is in the contract. I have never received my note or DOT back when I payed off the Note...before I knew it was all fraud that is and paid and paid. And according to the UCC 3-604 if they alter the Note at all, then it is void and the obligation is discharged. Also, it is not a Note once they alter it and it never was a Note because it is a contract under UCC 8 and 9 securities. And And,. When is someone going to address the issue of the bankruptcy? and the application of credit which is what they use to pay off any leans on the house so you can own it and put it into the trust as the owner at the table......? huh? when? that is where it all starts!! Next, is not the Note tender of payment under UCC  3-601? So the Note is payment therefore the DOT is complete and null and void.... no foreclosure.  And what about the very first words of the note, "In return for a Loan I  have received, I promise to pay,...."  Well two things are obvious, no one ever receives anything before signing the Note so that is a false statement!! Void!! Fraud, Second, maybe "I" did get a Loan and "I" does promise to pay, So why don't they go after "I"?  Clearly "I" is not "me" nor the name nor the all caps name under which they bring suit. They get a judgement against the fictional entity "ALL UPPER CASE" name but then take the property of the real person "Upper And Lower" case named. How is the possible? If they foreclose on SONY,  do they take the property of a guy named Sony (pronounced sunny) or COCA COLA and take the property of Coca Kola?  I think not!!! They are completely different entities and the all caps can not "own" property...
  Anyhoo, someone want to address these issues please?  By the way, I have looked and looked and can not find where a Judge was ever given any power under the Constitution!! Limitations Yes, power NO. In fact in all matters except under $20 trial by Jury shall be preserved. So, where is the jury, due process "no property shall be taken without due process" Just compensation and so forth... somethin ain't right Toto and this ain't Kansas State, I think it is a fictional strange land called "The State OF Kansas"....
 all the best to the rest, a hug just because, coming in peace with bare arms and clean hands, reserving all power, not for sale or obligation, creator known as Colin-Derek

---------------------------------------------------------------------------------------------------
Sara wrote:
I hate hearing about this decision.  I thought Taylor had a real chance in the beginning.

I still think it's better to fight and not win rather than do nothing at all!

S
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Lucky
They are still depending upon this ruling to claim that a MERS assignment also assigns the note even if the note in evidence does not bear an indorsement.

My attorney doesn't even want to argue against it. It might be time for a new attorney.
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Wiley
Quote:
They are still depending upon this ruling to claim that a MERS assignment also assigns the note even if the note in evidence does not bear an indorsement.

My attorney doesn't even want to argue against it. It might be time for a new attorney.


There is one nuance to meditate about with respect to the facts of your case. If it helps, explore it. If not, then let sleeping dogs lie.

Under the UCC, what is necessary to accomplish negotiation is indorsement and delivery. Mr. Roper reinforced this over and over again.

As noted by another participant in a recent post, ownership and holdership are different. Mr. Roper also discussed this in many posts.

One cannot be made the holder without indorsement and delivery. A mention of the note in a written assignment of mortgage really doesn't resolve that problem.

But a written assignment of the mortage CAN also transfer ownership of the note. The distinction is exceptionally important and essential to fully understand and appreciate.

If you read old posts, Mr. Roper explains several times that negotiations without a change in ownership of the instrument are actually routine in the mortgage industry.

The first such negotiation usually happens within 72 hours of the closing when the note is negotiated to a warehousing lender as security for the warehousing loan.

While this is a negotiation, it is not a sale. Instead, it is merely a pledge. The ownership of the instrument remains in the originator.

What happens next is very often a sale. The originator sells the note to an institutional investor. The sale may be accomplished by some written instrument. The negotiation is separate and is a negotiation from the warehousing lender to the institutional mortgage investor.

Another case where negotiation and ownership are separate is when the investor owns the instrument, while it remains entrusted for safeguarding by an institutional custodian.

My point here is that an assignment of mortgage CAN transfer ownership of the note. But it cannot transfer holdership. Mr. Roper is emphatic about this and the cases support this view. Only a holder or a transferee (nonholder) with right of enforcement can enforce the note.

Now here comes the bitter and awkward bit. A holder has standing. An owner has standing, too, but would lack the right of enforcement if the owner wasn't also the holder ot at least the transferee.

A defendant is usually only entitled to a complete dismissal due to lack of standing if the plaintiff lack any standing as to either count of the complaint. If the plaintiff is the holder at commencement, then the plaintiff has standing. If the plaintiff is the owner at commencement, then the plaintiff has standing. If the plaintiff is the owner of the mortgage, but neither the owner or holder of the note, the plaintiff still might have standing, at least as to the mortgage.

A plaintiff usually need to prove that it is the holder of the note and the owner of the mortgage to prevail. If the plaintiff is one, but not the other, the plaintiff still might have standing and be entitled to post commencement correction of the other.

However, if the plaintiff is neither the holder nor the owner, then the defendant ought to be entitled to a dismissal.

Look very carefully at the fact pattern for your case. If the plaintiff has plead an unindorsed note, then you probably want to mostly focus on the lack of indorsement. You can also argue that the assignment cannot accomplish a valid negotiation, which is true. You do not want to gratuitously admit that the assignment might have transferred the ownership of the note, but it could.

When the assignment is out of MERS, pleading the Appellant's Brief in the Nebraska case can help. Even if one accepts that MERS has some valid interest in the mortgage, it has no ownership interest in the mortgage whatsoever. Thus, MERS cannot convey the note, because it has no such interest. The Appellant's Brief in the Nebraska case PROVES THIS!

Be very careful how you plead this and be careful not to plead to much in the answer. Plead only the bare minimum necessary to set forth the appropriate denial. Save the rest for the answer to the motion for summary judgment and cross motion for defensive summary judgment!
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Lucky
Wiley wrote:
Quote:
They are still depending upon this ruling to claim that a MERS assignment also assigns the note even if the note in evidence does not bear an indorsement. My attorney doesn't even want to argue against it. It might be time for a new attorney.
  Look very carefully at the fact pattern for your case. If the plaintiff has plead an unindorsed note, then you probably want to mostly focus on the lack of indorsement. You can also argue that the assignment cannot accomplish a valid negotiation, which is true. You do not want to gratuitously admit that the assignment might have transferred the ownership of the note, but it could. When the assignment is out of MERS, pleading the Appellant's Brief in the Nebraska case can help. Even if one accepts that MERS has some valid interest in the mortgage, it has no ownership interest in the mortgage whatsoever. Thus, MERS cannot convey the note, because it has no such interest. The Appellant's Brief in the Nebraska case PROVES THIS!


Thanks for the info and advice. The thing is that the courts default position is that the MERS Assignment of Mortgage also acts to transfer an enforceable interest in the note even without an indorsement. They found MERS to be a "nonholder in possession of the instrument who has the rights of a holder." Therefor any recipient of a MERS Assignment is also a "nonholder in possession of the instrument who has the rights of a holder." While it seems possible to successfully make the counter argument, I am going to need an attorney who is willing and able to do so.
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Stan
Quote:
Thanks for the info and advice. The thing is that the courts default position is that the MERS Assignment of Mortgage also acts to transfer an enforceable interest in the note even without an indorsement. They found MERS to be a "nonholder in possession of the instrument who has the rights of a holder." Therefor any recipient of a MERS Assignment is also a "nonholder in possession of the instrument who has the rights of a holder." While it seems possible to successfully make the counter argument, I am going to need an attorney who is willing and able to do so.


The key to defeating the validity of an MERS assignment, at least as regards the note, is to get the appellate brief from the Nebraska case into evidence, as pointed out by Mr. Roper several years ago. See Mr. Roper's old posts about this.

Without the appellate brief, the courts have often taken the assignment at face value. MERS seems to be saying that it is transferring its interest and the defendant usually puts in no contrary evidence.

I asked Mr. Roper some time ago whether anyone had ever actually prevailed putting in the Nebraska brief. His answer was kind of interesting. First, he conceded that he had no idea how often the strategy had been employed in the trial court, but thought that only a few had ever done this. But he said that in the instances of which he was aware that the plaintiff had actually settled on terms that the defendant found acceptable. He said that he didn't know the terms of these settlements, but accepted at face value that those borrower/defendants who had interposed the defense and enterred into a settlement were at least satisfied.

Of course, none of these defendants got a free house or anything like it. But they probably got some waiver of trash fees, some modification that included a substantial interest rate reduction and reinstatement. Whether anyone got any principal reduction is unknown. Mr. Roper seriously doubted that anyone got a principal reduction below the fair market value of the property and said that at best the borrower probably got some fractional reduction in principal, but have may have received no such reduction at all. He added that such a settlement might not be in the economic interest of a person with a property deeply underwater.

The really key point though, is that when properly plead, the plaintiff doesn't want a case involving the Nebraska brief to get litigated to conclusion. If someone gets the Nebraska brief properly into evidence and a case goes up on appeal, it could eviscerate MERS nationwide. This has been the KEY to winning against MERS all along. But because foreclosure defense is dominated by mediocre lawyers and scam artists only a handful of really sharp pro se litigants have carried forward this strategy.

And Mr. Roper said one other thing about the Nebraska brief that was interesting. He said that because the Lenders never wanted to see such a case litigated to conclusion and go up on appeal that even if the borrower couldn't get a favorable settlement that the banks would probably slow track and draw a case involving the Nebraska brief out as long as possible. That is, unless agressively pressed by a scheduling order, the plaintiff may let the case languishg for a very long time.

Go back and read the posts on the Nebraska brief. It is the key to defeating MERS!
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Ben Tuey
Stan - Quote: "The key to defeating the validity of an MERS assignment, at least as regards the note, is to get the appellate brief from the Nebraska case into evidence,...."

I am pro se going to trial in Florida ... what are the steps to get the Nebraska Brief entered as evidence?

thanks..bt
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Marty
Oh, I posted in the wrong thread.

Here is what Mr. Roper said about admissibility:

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.

*

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.

*

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.

*

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.

*

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.

*

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 about "MERS Officers". Maybe someone else knows how to post a link to that thread.
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Marty
Also read Mr. Roper's posts within thus thread:

"Major NY Appellate Decision handed down Aurora Loan Services v. Weisblum"

See posts:

No. 26 Posted 05/22/11 at 04:59 PM

No. 28 Posted 05/23/11 at 12:30 AM

Maybe someone knows how to make some links.
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Ludwig
Here are the links:

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

"Major NY Appellate Decision handed down [i]Aurora Loan Services v. Weisblum"[/b]
http://ssgoldstar.websitetoolbox.com/post?id=5267191
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Ben Tuey
TU Marty & Ludwig!
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Lucky
Stan wrote:
The really key point though, is that when properly plead, the plaintiff doesn't want a case involving the Nebraska brief to get litigated to conclusion. If someone gets the Nebraska brief properly into evidence and a case goes up on appeal, it could eviscerate MERS nationwide. This has been the KEY to winning against MERS all along. But because foreclosure defense is dominated by mediocre lawyers and scam artists only a handful of really sharp pro se litigants have carried forward this strategy. And Mr. Roper said one other thing about the Nebraska brief that was interesting. He said that because the Lenders never wanted to see such a case litigated to conclusion and go up on appeal that even if the borrower couldn't get a favorable settlement that the banks would probably slow track and draw a case involving the Nebraska brief out as long as possible. That is, unless agressively pressed by a scheduling order, the plaintiff may let the case languishg for a very long time. Go back and read the posts on the Nebraska brief. It is the key to defeating MERS!


I told my attorney about this and he got upset. He said that if I am "going to keep coming up with defenses and expecting me to look up cases you will have to pay by the hour. The MERS Assignment is just like an indorsement and gives them the right to foreclose. This just isn't the way things are done. The courts are on the side of the banks. I have to go before those judges every week, and I am not going to hurt my other clients cases by arguing with the judge in this case."

It really is time for a new attorney.
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Casper
Quote:
I told my attorney about this and he got upset. He said that if I am "going to keep coming up with defenses and expecting me to look up cases you will have to pay by the hour. The MERS Assignment is just like an indorsement and gives them the right to foreclose. This just isn't the way things are done. The courts are on the side of the banks. I have to go before those judges every week, and I am not going to hurt my other clients cases by arguing with the judge in this case."

It really is time for a new attorney.


It is readily apparent that NONE of the Florida defense foreclosure mill attorneys actually understands the UCC. Most of these attorneys are very mediocre lawyers who couldn't get hired at a major firm becuase they didn't do very well in law school. Others have said this before.

Whether from the egregious errors they make in pleading -- such as mislabeling regular defenses as affirmative defenses -- or the failure to more widely read foreclosure cases nationally, these guy are all LOSERS who are accomplished only at self promotion and self-aggrandizement.

Using ANY Florida attorney who has a large docket of foreclosure cases is probably a grave mistake for precisely the reason that your attorney has just blurted out. These guys are only concerned about their own self-interests. Whether you lose your house or not isn't anywhere on their radar. They all have at best an exceptionally flawed view about the nature of the mischief, but more often know rather precisely that they are simply delaying rather than actually opposing foreclosure. Their goal is to get you to pay monthly and then to stretch your case out for as long as possible.

Anyone who is paying an attorney by the month rather than by the hour is absolutely out of his mind. There is no economy in this whatsoever. Like other forms of ghetto gouging, it is not intended to save the defendant money but rather to maximize the lawyer's revenue and profit. Because these Florida lawyers are all crooked and inept, they will probably not accept your case on other than these terms. So you also do not want to switch from this payment arrangement to an hourly fee arrangement with the same dishonest defense lawyer. Instead, you want to find an honest, industrious and hardworking lawyer who remains underemployed.

This county remains in a recession and there are thousands of attorneys unable to find jobs in law, even in places like Florida. You need to find someone who is honest and will put your interests first.

One additional caution is in order. So many borrowers spend undue amounts of time reading the various vacuous posts at so-called foreclosure defense sites operated by the scam artists and then waste their own time and energy carrying the legally specious theories they find there to their attorneys. This is clearly a waste of the attorney's time, so the attorneys have also tuned out this "help" from their client.

Mr. Roper once told me that he had gratuitously called up a couple of the leading Florida attorneys in 2007 to share the Nebraska brief, but that they not only refused to even hear of the possibility that it might contain some useful material, but instead insisted that he needed to employ a lawyer himself right away. These guys are complete idiots. It is readily apparent in any conversation that they have less than a thimble full of knowledge or understanding of the UCC or other aspects of the law compared to the ocean and wealth of understanding by Mr. Roper. They cannot even have an intelligent conversation with Mr. Roper about almost any legal topic.

Anyone who has ever spoken with that great man will instantly know exactly what I am talking about.
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Lucky
Casper wrote:
Whether from the egregious errors they make in pleading -- such as mislabeling regular defenses as affirmative defenses -- or the failure to more widely read foreclosure cases nationally, these guy are all LOSERS who are accomplished only at self promotion and self-aggrandizement.


I told him I didn't want any defenses which were not "affirmative defenses" plead as affirmative defenses. He said "Well then how do you plead them?" I don't think he reads anything on his own initiative.

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Whether you lose your house or not isn't anywhere on their radar. They all have at best an exceptionally flawed view about the nature of the mischief, but more often know rather precisely that they are simply delaying rather than actually opposing foreclosure. Their goal is to get you to pay monthly and then to stretch your case out for as long as possible. Anyone who is paying an attorney by the month rather than by the hour is absolutely out of his mind. There is no economy in this whatsoever. Like other forms of ghetto gouging, it is not intended to save the defendant money but rather to maximize the lawyer's revenue and profit. Because these Florida lawyers are all crooked and inept, they will probably not accept your case on other than these terms.


He seemed surprised that I wanted to actually defend myself, even though I have been telling him that for months. He told me how much experience he has. He actually thanked me for something I taught him, without telling me what it was, that he has used to help other clients. So thank you Mr. Roper since it was probably your advice.

It is almost impossible to hire an attorney on retainer and pay hourly for their time in a foreclosure case in the state of Florida. They all want either a monthly or even a yearly agreement.

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Instead, you want to find an honest, industrious and hardworking lawyer who remains underemployed. This county remains in a recession and there are thousands of attorneys unable to find jobs in law, even in places like Florida. You need to find someone who is honest and will put your interests first.


I am looking. I haven't had much success as yet.

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One additional caution is in order. So many borrowers spend undue amounts of time reading the various vacuous posts at so-called foreclosure defense sites operated by the scam artists and then waste their own time and energy carrying the legally specious theories they find there to their attorneys. This is clearly a waste of the attorney's time, so the attorneys have also tuned out this "help" from their client.


The only things I have shared with him are Mr. Roper's strategies. He is resistant to anything beyond a modification and a motion to dismiss.

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Mark
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I told him I didn't want any defenses which were not "affirmative defenses" plead as affirmative defenses. He said "Well then how do you plead them?" I don't think he reads anything on his own initiative.

Sounds like a complete idiot! How about simply labeling these as defenses? Duh!!

I sure wouldn't want this guy defending me in a criminal case. He would probably erroneously identify my alibi as an affirmative defense shouldering me with the burden of proving my alibi, when all I needed to do was introduce sufficent evidence to raise a reasonable doubt. It is unbelievable how inept these Florida foreclosure defense attorneys are.

One the other hand, I know a fellow who lived in the Northeast, graduated with honors from an elite Eastern university and went to law school in Florida. Since he had done very well in college and probably could have gotten into a much better shool, I asked him why he chose a Florida law school. He told me that the Florida law schools pass everybody, do not require very much work and there is ample opportunity to play golf rather than study. He said all he really cared about was getting a bar license and he disn't care whether he actually learned anything. He is an attorney now and an excellent golfer!
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