Niday v. GMAC Mortgage | Controversial MERS decision breaks Oregon foreclosure chain

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Niday v. GMAC Mortgage | Controversial MERS decision breaks Oregon foreclosure chain

Niday v. GMAC Mortgage | Controversial MERS decision breaks Oregon foreclosure chain

Crystal Clear: “Oregon legislature intended the ‘beneficiary’ to be the one for whose benefit the [deed of trust] is given, which is the party who lent the money,” rather than MERS

MERS never lent a single penny.  One day it’s a nominee the next it becomes a beneficiary *if* it wants to.

Housing Wire-

A controversial appellate court decision about the Mortgage Electronic Registration Systems in Oregon is stalling lending in the state with smaller banks worried about the decision’s impact on access to the secondary mortgage market.

The case, which is called Niday v. GMAC Mortgage, is on appeal to the Oregon Supreme Court.

Until a decision is reached, Paul Cosgrove, a government relations spokesperson for the Oregon Bankers Association, expects uncertainty to scale back lending in the state’s mortgage market, especially among smaller players. 

The appellate court in the Niday decision limited the meaning of the term beneficiary of the mortgage contract as the agent or person that is owed repayment on a loan.  Under this equation, MERS has no authority to assign foreclosing authority, which disempowers the construction of many lending assumptions made by financial firms in their contracts. This construction has forced many institutions in Oregon’s nonjudicial foreclosure state to pursue judicial foreclosures by default, Cosgrove added.

[HOUSING WIRE]

Here is the REAL truth for you judges that don’t understand…

The Nature of MERS’ Business

  • 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 has no role in the origination or original funding of the mortgages or deeds of trust for which it serves as “nominee”.
  • MERS does not service mortgage loans.
  • MERS does not sell mortgage loans.
  • MERS is not an investor who acquires mortgage loans on the secondary market.
  • MERS does not ever receive or process mortgage applications.
  • 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.
  • MERS© System is not a vehicle for creating or transferring beneficial interests in mortgage loans.
  • MERS is not named as a beneficiary of the alleged promissory note.

Ownership of Promissory Notes or Mortgage Indebtedness

  • MERS is never the owner of the promissory note for which it seeks foreclosure.
  • MERS has no legal or beneficial interest in the promissory note underlying the security instrument for which it serves as “nominee”.
  • MERS has no legal or beneficial interest in the loan instrument underlying the security instrument for which it serves as “nominee”
  • MERS has no legal or beneficial interest in the mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
  • MERS has no interest at all in the promissory note evidencing the mortgage indebtedness.
  • MERS is not a party to the alleged mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
  • MERS has no financial or other interest in whether or not a mortgage loan is repaid.
  • 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.
  • 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 has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.
  • MERS does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).
  • MERS has no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.
  • The note owner appoints MERS to be its agent to only hold the mortgage lien interest, not to hold any interest in the note.
  • 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.

Beneficial Interest in the Mortgage Indebtedness

  • MERS holds legal title to the mortgage for the benefit of the owner 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.
  • MERS has no interest at all in the promissory note evidencing the mortgage loan.
  • MERS does not acquire an interest in promissory notes or debt instruments of any nature.
  • 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 (NOT MERS).

MERS’ Rights To Control the Foreclosure

  • MERS must all times comply with the instructions of the holder of the mortgage loan promissory notes.
  • 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.
  • MERS’ members employ and pay the attorneys bringing foreclosure actions in/via MERS’ name.
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One Response to “Niday v. GMAC Mortgage | Controversial MERS decision breaks Oregon foreclosure chain”

  1. Charles Reed says:

    MERS is a part of Ginnie Mae’s RICO operation as the registry in even being called a registry is a joke. How is even the information to be reliable when in fact MERS never see a document or enter the data into the electronic system.

    MERS for example with the Washington Mutual Bank (WaMu) government loans (FHA, VA, USDA) had been placed into the Ginnie Mae pools and the blank endorse Notes are relinquish to Ginnie Mae which takes from WaMu the ownership of the Notes and it eliminate the debt because once the blank Notes are physically release the lender no long has a contract for the debt.

    Ginnie Mae is suppose to take physical possession but does not, however once in 2006 when it is allowed for Wells Fargo Bank to buy the WaMu mortgage servicing center and servicing agreement on 1.3 million loans and on Sept 25, 2008 WaMu was seized it set off a chain of events that all it take is for one person to understand the crime and it over, as far as the actual Ponzi Scheme that Ginnie Mae has always run.

    There is not a single government loan that has been administratively foreclosed that was not legally foreclosed because the fact is that Ginnie Mae is in possession of the blank Notes but are not the holder of the debt. Ginnie Mae gets MERS to illegally assign the security instruments (mortgage, deed of trust, security deed) to Wells Fargo in the case of WaMu, and STEALS the properties from the homeowner.

    Understand this that Ginnie Mae in no case can provide evident of a purchase and thereby is not the “holder in due course” and does not ever have the ability to transfer the Note. Ginnie Mae by law cannot originate, but or sell a home mortgage loan. This is why FHA loss $70 billion in loans and why the have a short fall of $16 billion!

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