This is Part 2 of a 3-part series on MERS and its attempts to “bat clean-up” (another word for damage control). For more information, and to read the preamble to my response to MERS’s PR campaign, see Part 1 of 3 on http://www.cloudedtitles.com.

By Dave Krieger
Managing Member
DK Consultants LLC
(Op-Ed)
March 7, 2013

“Setting the record straight” … this is what MERS CEO Bill Beckmann attempted to orchestrate when he caused this almost-full-page response to the land record audit with an “open letter” to the Williamson County Commissioners. Beckmann obviously didn’t understand that before this audit was ever conducted, conversations amongst the hierarchy in Williamson County about the condition of the land records had already taken place, as early as the days when former MERS CEO R. K. Arnold bandied his PR campaign about the countryside much to the chagrin of county recorders and Texas Clerks alike. What became noticeable to the hierarchy was the proliferation of alleged robosigning with the repeated filings of foreclosure mill attorney Stephen C. Porter’s signature, or multiple variations of it, along with another known foreclosure attorney, Selim Taherzadeh, along with multiple signature variations of his signature. Did we say MERS was directly responsible? I think not. They just provided the business model for this behavior.

This intervention (what I call the published article of February 7, 2013 in the Austin American-Statesman) appears similar to the results of an intervention that took place in the case of In Re Agard in a New York bankruptcy court, where Judge Robert Grossman literally eviscerated MERS to the same level as gutting a chicken once you’ve cut its head off and watch it run around in circles before it bleeds out. MERS then had to take its case to another federal district judge to “bat clean-up” again (the Grossman attack on MERS in Agard was ruled improper).

Most PR experts I have spoken with tell me that if you make a mistake, the best PR approach is to come right out and admit it. That’s not what I’m seeing in this newspaper article. It looks to me as if MERS is trying to justify itself and further justify its existence before another lawsuit gets filed against it while yet another lawsuit is in mediation (Dallas County v. MERS).

Hey, it’s a free-speech country here, at least for the moment. So Beckmann gets to take a shot at my work in “setting the facts straight”. Most of the time, when someone hasn’t read something (as in the Williamson County land record audit), that the PR arm wouldn’t simply come out and say, “We have no comment because we haven’t read the audit yet” rather than the usual adage, “We haven’t done anything wrong.” There’s the PR defense mechanism rearing its ugly head again. That’s like the kid getting caught with his hand in the cookie jar all the while looking at you with a facial expression of, “What did I do wrong?”

One would have to wonder why Beckmann would seemingly attempt to rebut something and not check his work for errors. Thus, I’m going to “have at it” and rebut some of MERS assertions in this article, which ran in the Austin American-Statesman on February 7, 2013.

I should precede my comments with the fact that an attorney who is known to represent Bank of America came into the Williamson County Clerk’s office threatening suit. A lawsuit for what? Bring it then! We want discovery! This is called “intimidation factor” as part of “damage control”. This is what Southern Essex County Register of Deeds John O’Brien told an attorney (that came into his office after the audit of his land records was issued) that threatened him with similar action. This too, is part of damage control.

MERS has a P.R. department designed specifically for that purpose. After all, if MERS didn’t do anything wrong:

• Why did they agree to a Consent Order on April 13, 2011?

• Why all of a sudden are they in mediation with Dallas County over allegations of the Texas Local Government Code Section 192.007 violations, which largely was used as a basis for the Williamson County real property records audit?

• Why did Multnomah County, Oregon sue them?

• Why did the Kentucky Attorney General sue them?

• Why did the (substitute name of county or state here) sue them?

• Why is Williamson County considering suing them?

• Why are they named in virtually every lawsuit filed against a lending institution by a disgruntled homeowner who “just now found out MERS is in his deed of trust or mortgage”?

• Why did the Washington State Supreme Court rule that they weren’t a valid beneficiary under the Washington Deed of Trust Act in the Bain v. Metropolitan Mortgage case?

• Why are the Oregon Supremes taking up similar issues that Washington ruled on as to MERS’s “beneficial” status under the Oregon Deed of Trust Act?

• Why have several law professors, who I deem highly worthy of commendation here, along with several states attorneys general (like Washington’s Jim Sugarman, who now works at the Consumer Financial Protection Bureau along with law professor Christopher Peterson, whose white papers you all know and love), come out against MERS in several think pieces and amicus briefs?

• Why is Ohio Congresswoman Marcy Kaptur sponsoring legislation to rid MERS involvement with government-sponsored entities (Fannie Mae, Freddie Mac, Ginnie Mae)?

• Why are many States (like Rhode Island) now reconsidering banning “nominees” from acting in the stead of the lender in foreclosure actions?

Need I go on?

Don’t you think for one minute that the court systems across America aren’t going to get tired of dealing with MERS business model? They will at some point, as the dockets start loading up en masse as more and more homeowners come out of the woodwork “with pitchforks” and sue MERS into oblivion. Do you really think there are enough attorneys to defend millions of lawsuits? I would think at some point the legal costs would do more than “tarnish” MERS’s profit margin. Mind you, I could pay $10,000 and get an opinion letter drafted by a major law firm that ironically represents my interests to clarify that what I’m doing is legal. So what’s all the fuss about putting an article in the American-Statesman?

Beckmann can attempt to “set the record straight”, but some of his assertions come at a price:

• I would have to question exactly how many Borrowers really KNEW who MERS was when they went to the closing table because most of the homeowners I’ve talked to said they had no idea who MERS was and the title companies handling the closing sure didn’t explain it to them. It amazes me that if people knew about MERS, why did the Williamson County real property records office received hundreds of phone calls from concerned homeowners over a 10-day period following the release of the audit?

• In the rebuttal letter, Beckmann tells the Williamson County Commissioners that they heard this testimony on January 22, 2013, when in fact, the Commissioners’ Court heard this testimony on January 29, 2013. What does that say for Beckmann not getting HIS facts straight?

I’ll present the rest of my rebuttal in Part 3 of 3 of this 3-part series.

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