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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tmc
I defaulted on my MERS loan.
MERS, as nominee for Lender, assigns deed of trust to Lender.
I reach a modification.
After time, Lender sells note to company A.
Company sells note to company B.
I then default...again.
Company A assigns deed of trust to company B.
Company B sells property at trustee sale.
Lender, company A and B are all MERS members.

The question is, wouldn't MERS be the only one who could have assigned the deed of trust?  I know this goes against what many have argued; but it seems in my case MERS is the only one that could have assigned the Deed of Trust.

Consider the language of "Lender's successors and assigns" .  It would seem to me that MERS can not ever assign itself out of it's role when assigning to another MERS member and therefore MERS is the only one that can foreclose? 

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texas
tmc said: "I defaulted...."

Never make admissions!!!!
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tmc
Ok, yes I would I never say that in my complaint.  But I think I've read an opinion where the judge interpreted the fact that the homeowner was trying for a modification as an admission of default. 

None the less, any thoughts on the MERS questions?

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texas
tmc, I would go visit http://www.scribd.com/alviec or http://www.ourlemon.com to find out how MERS really works, then return here to MSFraud to discuss tactics.

Beware of who maybe lurking in the backwaters!

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tmc
I get the whole MERS thing...well mostly.   I do know it's complicated and has not been a very successful defense. 

In my state, it seems a lot of courts have been confused and resort to the plain language of the DOT.  If they chose to pursue that line of thinking, than why not go back to the plain language on the DOT which basically say MERS will forever be the beneficiary (as nominee) for the Lender and therefore can NEVER assign the deed to anyone else to commence a foreclosure???

Think about it for a moment.  MERS is the beneficiary (as nominee) for Lender.  If the Lender is a MERS member; when MERS assigns the deed of trust to the Lender it is still the beneficiary (as nominee).   These assignments from MERS (as nominee) to Lender (for purposes of foreclosing) doesn't change a thing.  MERS is still the beneficiary (as nominee) because the Lender still is a MERS member.

The language of the deed of trust creates a circle that MERS can never break out of unless they assign the deed of trust to a non-MERS member.

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Martin

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I get the whole MERS thing...well mostly. I do know it's complicated and has not been a very successful defense.

In my state, it seems a lot of courts have been confused and resort to the plain language of the DOT. If they chose to pursue that line of thinking, than why not go back to the plain language on the DOT which basically say MERS will forever be the beneficiary (as nominee) for the Lender and therefore can NEVER assign the deed to anyone else to commence a foreclosure???

Think about it for a moment. MERS is the beneficiary (as nominee) for Lender. If the Lender is a MERS member; when MERS assigns the deed of trust to the Lender it is still the beneficiary (as nominee). These assignments from MERS (as nominee) to Lender (for purposes of foreclosing) doesn't change a thing. MERS is still the beneficiary (as nominee) because the Lender still is a MERS member.

The language of the deed of trust creates a circle that MERS can never break out of unless they assign the deed of trust to a non-MERS member.

 

Trying to have any meaningful discussion about the effects fo MERS on your foreclosure situation is useless without identifying the state in which the matter is being litigated.

 

Overall, I find your suggested defense to be ludicrous.  But maybe you can get the judge to laugh so hard that he will neglect to sign the dismissal order.

 

Why don't you scroll or search back and read Mr. Roper's posts on MERS.  Also read the law review articles which have been written about MERS.  FOcus on the cases from your jurisdiction and the facts of your situation.

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tmc
It's not a suggested defense; it's a theory I'm trying to think through.  As of right now, nobody has shown me why it wouldn't work.  

Anyone, including MERS, assigns a DOT to a MERS member and MERS is the beneficiary.  But somehow,  when MERS wants to remove itself as nominee, it can, even though nothing has changed in the membership agreement or DOT. 

If you don't have the answer; say nothing.  No need for condescending BS. 

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texas
tmc said: "MERS is the only one that could have assigned the Deed of Trust"

Only a secured party could effectuate a transfer of a security securing a note owned by the secured party, If MERS was lawful agent for the secured party then MERS might be operating in behalf of the secured party, MERS being an agent for an unidentified subsequent secured party, how can that be? Subsequent unidentified secured party might equal the indorsee who is not identified on a notes negotiation as "endorsed in blank."

But MERS just being named as beneficiary to replace the secured party seems to contradict the fact that a beneficiary should also be the secured party.

For some states, subsequent filing of record maybe required to permanently perfect lien rights in a subsequent secured parties name.
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tmc
Yes I understand the issues with MERS.  My point is to present an A or B argument to a court.  If the court chooses to legitimize the role of MERS, then they should recognize that legitimacy stems from the membership agreement and purported agency relationship.  The membership agreement is not on a loan by loan basis.  Without specific instructions to end the MERS relationship on a specific loan, any assignment by MERS to a MERS member results in MERS being beneficiary (as nominee).  It doesn't matter who makes the assignment or which lender MERS assigns to.  It could be the current lender or a new lender.  With the agent agreement in place; MERS will be the beneficiary.
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Look up James v. Recontrust et al. Case 3:11-cv-00324-ST, order filed 02/29/2012 (U.S. Dist. Ct., D. Oregon) determining various dismissal motions and containing an insightful examination of what rights, if any, that may be held by MERS under Oregon state law. Bear in mind that Oregon has a nonjudicial foreclosure option and the MERS document at issue in that case is a Deed of Trust and is not a Mortgage. The court also discusses the difference. Both are security instruments, but typically a mortgage has two parties and a Trust Deed involves three, the third being the Trustee.

This case involves a direct hit on the OP question and in my mind, suggests that the OP is not out in the ozone somewhere. The fact is that this stuff is difficult going.

One valid issue that I think must be thrashed out is whether MERS owns even a legal interest in the property - given that it is conditional in the first place and, under the Oregon case, the beneficiary of the trust is NOT MERS, but must be the lender. Accordingly the lender retains ownership of the secured benefits and MERS has no inherent authority whatsoever, beyond recordation in the public record. That suggests that, absent evidence of authority from the lender, MERS may not have even the authority to transfer or assign its interest, because whatever interest it does hold is strictly derivative of the Lender's interest and does not pass by the execution of the Trust deed.

Lots of contradictions here; we may be well served by suspending disbelief. It may be that the drafters of the MERS documents have no idea what a judge will do with their creation.  YMMV.
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Martin

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Yes I understand the issues with MERS. My point is to present an A or B argument to a court. If the court chooses to legitimize the role of MERS, then they should recognize that legitimacy stems from the membership agreement and purported agency relationship. The membership agreement is not on a loan by loan basis. Without specific instructions to end the MERS relationship on a specific loan, any assignment by MERS to a MERS member results in MERS being beneficiary (as nominee). It doesn't matter who makes the assignment or which lender MERS assigns to. It could be the current lender or a new lender. With the agent agreement in place; MERS will be the beneficiary.
 

You totally fail to comprehend agency.  See Mr. Roper's helpful posts on this subject.

 

The existence of an agency arrangement never precludes a principal from acting on its own behalf.  Rather, it only additionally authorizes the agent to act on behalf of the principal.

 

Even when the agent lacks actual authority, a principal can later authorize an act by an agent through ratification.

 

Agency is distinguishable from guardianship or receivership.  When a guardian is appointed for a person, the guardianship displaces the person's authority to act on their own behalf.  Agency doesn't.  Similarly, appointment of a receiver divests a person or board of directors of authority over the assets of an estate.  In Bankruptcy, the trustee succeeds to authority over the assets of the bankrupt debtor.

 

You are way off into wingnut never neverland, pursuing unproductive avenues.  Moreover, if you think you are helping yourself by trying to bring MERS primary documents into a case, you are probably headed in precisely the wrong direction.  It is usually easier to deny MERS authority by pointing to the creditor's failure to get the MERS membership agreement and other primary materials into evidence.

 

It seems that you are resolved to put this material into evidence to assure your defeat. 

 

You seem to fail to appreciate that the facts in a case are not the objective and actual facts, but rather only the facts in evidence before the court adjudicating the matter.

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Mers did an assigment of deed of trust to BOA, are they allowed to do that? is that legal?
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Cabinetmaniac
Maria wrote:
Mers did an assigment of deed of trust to BOA, are they allowed to do that? is that legal?


The courts have usually accepted MERS assignments.

There are cases where the assignment was challenged and the court has ruled against MERS.

"MERS asserts that its right to assign the Mortgage to U.S. Bank in this case, and in what it estimates to be literally millions of other cases, stems from three sources: the Mortgage documents; the MERS membership agreement; and state law.

The Court agrees with the reasoning and the analysis in Bouloute and Alderazi, and the other cases cited herein and finds that the Mortgage, by naming MERS a "nominee," and/or "mortgagee of record" did not bestow authority upon MERS to assign the Mortgage.

The rules of membership do require that MERS members name MERS as "mortgagee of record" and that MERS appears in the public land records as such. Section 6 of Rule 2 states that "MERS shall at all times comply with the instructions of the holder of mortgage loan promissory notes," but this does not confer any specific power or authority to MERS.

This Court finds that MERS's theory that it can act as a "common agent" for undisclosed principals is not supported by the law.

In re Agard: http://scholar.google.com/scholar_case?case=8153177940312132244&hl=en&as_sdt=2,10

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