The Law Offices of David J. Stern took its fight against the attorney general’s investigation to court on Tuesday, moving to quash the state’s subpoena.
The battle between Attorney General Bill McCollum and four law firms accused of shoddy foreclosure practices continued in Broward County Court on Tuesday, with the Law Offices of David J. Stern challenging the state’s subpoena.
Jeffrey Tew, legal counsel for Stern’s Plantation-based firm, argued that the attorney general’s office does not have jurisdiction to investigate law firms under the Federal Deceptive and Unfair Trade Practices Act, or FDUTPA.
That statute — the basis of McCollum’s case — only applies in cases where goods and services are being transferred between the accused and the alleged victim, Tew said.
“The alleged quote-unquote `victims’ in this case are the borrowers,” said Tew, presenting a motion to “quash” the subpoena. “FDUTPA requires that the law firm be exchanging goods and services of monetary value with the borrowers.”
Tew said that the law firm was exchanging its services with the banks, not the borrowers.
The judge, Eileen O’Connor, said she would rule in a couple of days.
The case is crucial to the state’s investigation, because it comes on the heels of another ruling in which a Palm Beach judge quashed the state’s subpoena of the Shapiro & Fishman law firm. That judge said the Florida Bar and the Supreme Court have jurisdiction to sanction lawyers, not the attorney general.
O’Connor indicated that she would judge independently.
“That’s not your better argument,” she told Tew after he referenced the Palm Beach case.
Lawyers Peter Ticktin, left, and Josh Bleil, of The Ticktin Law Group, are shown with depositions from 150 robosigners, alleging that the court documents reveal an industry-wide banking scheme to defraud homeowners, in Deerfield Beach, Fla. Tuesday, Oct. 12, 2010. (AP Photo/Lynne Sladky)
Robo-signers: Mortgage experience not necessary
Banks hired hair stylists, teens to process foreclosure documents, workers’ testimony shows
Michelle Conlin, AP Real Estate Writer, On Tuesday October 12, 2010, 9:21 pm EDT
NEW YORK (AP) — In an effort to rush through thousands of home foreclosures since 2007, financial institutions and their mortgage servicing departments hired hair stylists, Walmart floor workers and people who had worked on assembly lines and installed them in “foreclosure expert” jobs with no formal training, a Florida lawyer says.
In depositions released Tuesday, many of those workers testified that they barely knew what a mortgage was. Some couldn’t define the word “affidavit.” Others didn’t know what a complaint was, or even what was meant by personal property. Most troubling, several said they knew they were lying when they signed the foreclosure affidavits and that they agreed with the defense lawyers’ accusations about document fraud.
“The mortgage servicers hired people who would never question authority,” said Peter Ticktin, a Deerfield Beach, Fla., lawyer who is defending 3,000 homeowners in foreclosure cases. As part of his work, Ticktin gathered 150 depositions from bank employees who say they signed foreclosure affidavits without reviewing the documents or ever laying eyes on them — earning them the name “robo-signers.”
The deposed employees worked for the mortgage service divisions of banks such as Bank of America and JP Morgan Chase, as well as for mortgage servicers like Litton Loan Servicing, a division of Goldman Sachs.
Ticktin said he would make the testimony available to state and federal agencies that are investigating financial institutions for allegations of possible mortgage fraud. This comes on the eve of an expected announcement Wednesday from 40 state attorneys general that they will launch a collective probe into the mortgage industry.
“This was an industrywide scheme designed to defraud homeowners,” Ticktin said.
The depositions paint a surreal picture of foreclosure experts who didn’t understand even the most elementary aspects of the mortgage or foreclosure process — even though they were entrusted as the records custodians of homeowners’ loans. In one deposition taken in Houston, a foreclosure supervisor with Litton Loan couldn’t define basic terms like promissory note, mortgagee, lien, receiver, jurisdiction, circuit court, plaintiff’s assignor or defendant. She testified that she didn’t know why a spouse might claim interest in a property, what the required conditions were for a bank to foreclose or who the holder of the mortgage note was. “I don’t know the ins and outs of the loan, I just sign documents,” she said at one point.
Until now, only a handful of depositions from robo-signers have come to light. But the sheer volume of the new depositions will make it more difficult for financial institutions to argue that robo-signing was an aberrant practice in a handful of rogue back offices.
Demands information from Bank of America, JP Morgan Chase, Wells Fargo and GMAC Mortgage/Ally ~Calls for suspension of foreclosures by mortgage servicers engaged in “robo-signing” in New York until accuracy of court documents and integrity of process are assured
NEW YORK, NY (October 12, 2010) – Attorney General Andrew M. Cuomo today announced that he is seeking information from four major mortgage servicers – Bank of America, JP Morgan Chase, Wells Fargo and GMAC Mortgage/Ally – concerning the filing of affidavits that falsely attest the signer has personal knowledge of the facts presented in home foreclosure proceedings, a practice known as “robo-signing.”
In view of the prevalence of this practice in the industry, Cuomo also called on mortgage servicers engaged in “robo-signing” in New York to immediately suspend all foreclosure actions in the state until they correct their procedures to comply with New York law and can assure the public and the courts that integrity has been restored.
“I will not allow New Yorkers to lose their homes due to mortgage goliaths that buck the system by submitting affidavits signed without knowledge of the facts,” said Attorney General Cuomo. “Such conduct is a fraud upon our courts and a slap in the face of New Yorkers struggling to get by in this economy. My office will continue to root out these practices so homeowners receive the full protections afforded by our judicial system.”
Recent reports indicate that employees of these mortgage servicers routinely signed affidavits submitted in foreclosure proceedings without personal knowledge of the underlying facts or verification of loan file information, and without even reading the documents they signed. This practice, known as “robo-signing,” has tainted the integrity of the foreclosure process by which homeowners in New York lose their homes. Bank of America, JP Morgan Chase and GMAC Mortgage announced that they were temporarily halting pending foreclosures, while Wells Fargo has not suspended foreclosures despite the deficiencies uncovered.
Attorney General Cuomo is calling on these mortgage servicers to submit documents and information to his office concerning how foreclosure documents are prepared, verified, attested to and notarized, and how required notices are provided to New York homeowners. The letters request that the mortgage servicers stop re-filing foreclosures that had been suspended (and in Wells Fargo’s case, cease proceeding with pending foreclosures) until the Attorney General’s Office is assured that reliable and fair procedures are in place and that accurate, trustworthy documentation will be submitted to the New York courts. The letters also request that the mortgage servicers refrain from filing any new foreclosures until they can provide assurances that their procedures comply with New York law and are neither tainted nor inaccurate.
Because of the gravity of these transgressions and the high volume of foreclosures, Attorney General Cuomo is calling on all mortgage servicers engaged in “robo-signing” in New York to immediately suspend all pending foreclosure actions in the state, including evictions and foreclosure sales. Cuomo is also requesting that the mortgage servicers not file any new foreclosures until the companies correct their procedures.
Tens of thousands of New Yorkers have been devastated by the foreclosure crisis. In fact, the foreclosure rates in Nassau and Suffolk Counties rank among the ten highest in the nation. More than 60,000 New York homes are currently in foreclosure, and 130,000 New York homeowners have received pre-foreclosure notices this year after falling behind on their mortgage payments.
In addition to his office’s review of Bank of America, Chase, Wells Fargo and GMAC Mortgage/Ally, Attorney General Cuomo is working with other state attorneys general, banking regulators and other interested parties to assess the veracity of servicers’ foreclosure filings and ensure the fairness and accuracy of their processes.
Attorney General Cuomo advises New York homeowners who are facing foreclosure proceedings to do the following:
Contact the court to find out the status of your foreclosure proceeding.
Seek representation or advice from a qualified attorney. If necessary, contact your local bar association or legal services office for a referral. If you are unable to retain counsel, carefully review any documents filed thus far with the court to ensure their accuracy.
If you have not done so already, immediately contact your lender or servicer to discuss available alternatives to foreclosure such as a loan modification.
Consult with a government-approved housing counseling agency. To find counselors approved by the U.S. Department of Housing and Urban Development (HUD) in your local area, call 800-569-4287 or visit www.hud.gov. A list of housing counselors also can be found via the NYS Banking Department at www.banking.state.ny.us.
Call HOPE NOW at 1-888-995-HOPE. HOPE NOW is an alliance of housing counselors, mortgage companies, investors and other mortgage market participants that provides free foreclosure prevention assistance.
If you live in New York City, call 311 to schedule free foreclosure counseling sessions at the Center for New York City Neighborhoods.
New York homeowners who believe their homes were foreclosed based upon false or inaccurate documents filed in court by their lender or servicer should seek representation from an attorney. They may also file a complaint with the New York Attorney General’s Bureau of Consumer Frauds & Protection by calling 800-771-7755 or visiting www.ag.ny.gov.
The investigation, led by Special Deputy Attorney General for Consumer Frauds & Protection Joy Feigenbaum, is being handled by Special Counsel Mary Alestra, Assistant Attorney General Brian Montgomery and Deputy Bureau Chief Jeffrey Powell of the Bureau of Consumer Frauds & Protection under the direction of Executive Deputy Attorney General for Economic Justice Maria Vullo and Deputy Attorney General for Economic Justice Michael Berlin.
Make sure you read this carefully…This is a transcript of an employee of Residential Funding Company who is in charge of record keeping of original documents. Don’t miss the full deposition down below.
Follow the assets, don’t get lost in the trail…
17 Q. Now, when you said you’re the Director of
18 Records Management for the Minnesota office?
19 A. Uh-huh.
20 Q. Are there other offices of Residential
21 Funding that maintain records that you are
22 not responsible for?
23 A. There are records services sites in Iowa and
24 in Pennsylvania.Those deal mostly with the
25 GMAC mortgage assets.
<snip>
11 Q. And what, if anything, is your responsibility
12 with regard to those records?
13 A. To track the physical paper for those
14 assets — or that asset.
15 Q. Are you what you consider to be the keeper of
16 the records for those documents?
17 A. Sure, yep.
5 Q. Okay. And then when somebody wants to view
6 specific records from your system, is that
7 something that you’re responsible for
8 obtaining as part of your day-to-day
9 responsibilities?
10 A. The people that report to me, yes, or the
11 vendor that — that we have retained to do
12 those functions, yes. I don’t do that
13 myself.
14 Q. Who’s the vendor that you retain to do that?
15 A. A company called ACS.
16 Q. ACS?
17 A. Yep.
18 Q. And what does ACS do with regard to the
19 records?
20 A. They fulfill the request. So if somebody
21 needs a credit folder or a legal folder, they
22 research where those documents are, obtain
23 the documents and then provide that requestor
24 with either the paper documents or images.
<snip>
21 Q. There’s a file folder that shows it came from
22 the outside vendor?
23 A. Yes. Their sticker is affixed to the front
24 of the folder, so I know it came from them.
25 Q. Okay. And then is there anything on the
1 documents themselves that show where they
2 came from?
3 A. No.
4 Q. And by the outside vendor, do you mean ACS?
5 A. No. Actually, the vendor that stores the
6 actual folder is Iron Mountain.
7 Q. So there’s a sticker on that file that shows
8 it came from Iron Mountain?
9 A. Correct, yes.
10 Q. Does Iron Mountain maintain your system or do
11 they just maintain hard copies of documents?
12 A. They maintain the hard copies of the
13 documents.
14 Q. Not any records on your computer system,
15 correct?
16 A. No.
17 Q. Is that correct?
18 A. Correct.
<snip>
18 Q. What’s the relationship between Residential
19 Funding Company, LLC and U.S. Bank National
20 Association?
21 A. In — in this instance, U.S. Bank is the
22 trustee on the security that this loan is in.
23 And RFC was the issuer of the security that
24 was created.
25 Q. Who was the issuer of the security?
1 A. RFC was the issuer of the security.
2 Q. Oh, RFC is what you call Residential Funding
3 Company?
4 A. Yes.
5 Q. So RFC issued the security?
6 A. Right.
7 Q. Can you explain to me what that means?
8 A. No, I can’t.
9 Q. Okay. How do you know RFC issued the
10 security?
11 A. It’s the normal course of business as to how
12 our — our business works. RFC is in the
13 business of acquiring assets and putting them
14 together into securities to sell in the — in
15 the market.
16 MR. SHAW: I would like to
17 register a general objection to this line of
18 questioning. There’s not been a foundation
19 laid for Judy Faber being competent to reach
20 some of these conclusions that are being
21 stated on the record.
22 BY MR. HOLLANDER:
23 Q. So in this particular instance, do you have
24 any personal knowledge of the relationship
25 between RFC and U.S. Bank National
1 Association as trustee?
2 A. No.
3 Q. For whom is U.S. Bank National Association
4 acting as the trustee?
5 A. I believe it would be for the investors of
6 the — that have bought the securities.
7 Q. I’m sorry. Something happened with the phone
8 and I didn’t hear your answer. I’m sorry.
9 A. I believe it would be for the different
10 investors who have bought pieces of that
11 security that was issued.
12 Q. Are there different investors that have
13 purchased the Peter Cook note?
14 A. I don’t think I’m qualified to answer that.
15 You know, I can tell you from what my basic
16 understanding is from the process, but I’m
17 not an expert.
18 MR. SHAW: Once again, I’d like to
19 raise a continuing general objection that she
20 being — testifying with respect to what her
21 job is, and I believe you’re getting into
22 areas that is other than what her job is and
23 you’re asking for possibly even legal
24 conclusions here. So I would like to raise
25 that objection again.
By Dakin Campbell and Donal Griffin – Oct 12, 2010 12:00 AM ET
Citigroup Inc. said it stopped steering foreclosure work to a Florida law firm whose court filings to support home seizures are under investigation by the state’s attorney general.
The bank, which is proceeding with seizures as some rivals stop to recheck documents, had used the Law Offices of David J. Stern PA. Florida Attorney General Bill McCollum said Aug. 10 it is examining whether Stern and two other firms filed “improper documentation” with the state’s courts to speed proceedings.
“Pending the outcome of the AG’s investigation, Citi is not referring new matters to this firm,” the New York-based bank said in an e-mailed statement. Citigroup services loans for government-sponsored entities, such as Fannie Mae and Freddie Mac. Stern “was approved by the GSEs during the time in which it was retained by Citi,” the bank said.
Lawmakers, attorneys general and consumer groups have pressed mortgage firms to follow Bank of America Corp., the biggest U.S. lender, which last week suspended all foreclosures to check whether faulty documents were used to confiscate homes. JPMorgan Chase & Co. and Ally Financial Inc.’s GMAC Mortgage unit froze seizures or evictions in Florida and 22 other states. Citigroup said last week it doesn’t plan to join them.
McCollum’s office “hasn’t made any charges or allegations of fault,” said Jeffrey Tew, an outside attorney for Plantation, Florida-based Stern, who declined to discuss its work for Citigroup. “I believe they’re a client. I can’t go into any details.”
When home buyers and people refinancing their mortgages first see the itemized estimate for all the closing costs and fees, the largest number is often for title insurance.
This moment is often profoundly irritating, mysterious and rushed — just like so much of the home-buying process. Lenders require buyers to have title insurance, but buyers are often not sure who picked the insurance company. And the buyers are so exhausted by the gauntlet they’ve already run that they’re not interested in spending any time learning more about the policies and shopping around for a better one.
Besides, does anyone actually know people who have had to collect on title insurance? It ultimately feels like a tax — an extortionate one at that — and not a protective measure.
But all of the sudden, the importance of title insurance is becoming crystal-clear. In recent weeks, big lenders like GMAC Mortgage, JPMorgan Chase and Bank of America have halted many or all of their foreclosure proceedings in the wake of allegations of sloppiness, shortcuts or worse. And a potential nightmare situation has emerged that has spooked not only homeowners but lawyers, title insurance companies and their investors.
What would happen if scores of people who had lost their homes to foreclosure somehow persuaded a judge to overturn the proceedings? Could they somehow win back the rights to their homes, free and clear of any mortgage? But they may not be able to simply move back into their home at that point. Banks, after all, have turned around and sold some of those foreclosed homes to nice young families reaching out for a bit of the American dream. Would they simply be put out on the street? And then what?
The answer to that last question may depend on whether those new homeowners have title insurance, because people who buy a home without a mortgage can choose to go without a policy.
Title insurance covers you in case people turn up months or years after you buy your home saying that they, in fact, are the rightful owners of the house or the land, or at least had a stake in the transaction. (The insurance may cover you in other instances as well, relating to easements and other matters, but we’ll leave those aside for now.)
By Phil Milford and Denise Pellegrini – Oct 9, 2010 12:01 AM ET
A former paralegal told Florida investigators that workers at a law firm that processed foreclosures signed paperwork without reading it, misdated records and skirted rules protecting homeowners in the military.
Tammie Lou Kapusta, who said she spent more than a year at the Law Offices of David J. Stern PA, made the accusations in a Sept. 22 interview with lawyers for Florida Attorney General Bill McCollum. In August, McCollum announced a probe of three law firms to see whether improper documents were created and filed with state courts to hasten the foreclosure process.
Jeffery Tew, a lawyer for the Stern firm, denied Kapusta’s claims.
Kapusta, who spoke under oath, said the Stern firm ballooned from 225 employees when she started in March 2008, to more than 1,100 when she was fired in July 2009. She described a disorganized workplace where documents got lost and mortgages were misfiled. The training process was “stupid and ridiculous,” she said.
“There were a lot of young kids working up there who really didn’t pay attention to what they were doing,” she said, according to a transcript. “We had a lot of people that were hired in the firm that were just hired as warm bodies.”
Kapusta’s statements were reported Oct. 7 in the Tampa Tribune. Tew, of Tew Cardenas LLP in Miami, said he wasn’t aware of the interview until it was released to the public.
“We didn’t get a chance to cross-examine her,” he said. “It was a one-sided statement by a disgruntled employee. There was a lot of animus and personal references, and she seeks to besmirch people’s reputation. The law firm denies there’s any accuracy in the charges.”
Jurisdiction Challenged
There’s a court hearing set for Oct. 12 to determine whether McCollum’s office has jurisdiction over the firm’s conduct, Tew said.
“This is a civil investigation, and the attorney general hasn’t made any conclusions,” Tew said.
Washington Post Staff Writer
Saturday, October 9, 2010; 10:11 PM
Consumer advocates and lawyers warned federal officials in recent years that the U.S. foreclosure system was designed to seize people’s homes as fast as possible, often without regard to the rights of homeowners.
In recent days, amid reports that major lenders have used improper procedures and fraudulent paperwork to seize properties, some Obama administration officials have acknowledged they had been aware of flaws in how the mortgage industry pursues foreclosures.
But the officials said they could take only limited action to address the danger. In part, this was because they wanted lenders’ help carrying out federal programs to modify mortgages that had fallen into default or were poised to do so.
New concerns about improper practices – such as those involving faked documents or “robo-signers” who signed tens of thousands of documents without reviewing them – have prompted the mortgage servicing arms of the country’s largest banks to freeze millions of foreclosures. As momentum builds for a national moratorium, the administration has begun assessing the potential impact, examining the threat it could pose for the ailing housing market and the wider financial system.
There is no evidence so far that the specific abuses made public in the past few weeks were known to government officials. Nor is it clear whether they were aware that the process of the selling and reselling of mortgages among financial firms – which became extremely common and highly profitable during the housing boom – was raising legal questions about who actually owned the loans and had the right to foreclose if they want bad.
But government officials were told repeatedly that the mortgage servicing industry was deeply troubled, according to administration officials, consumer advocates, housing lawyers and congressional aides.
Bank of America
Florida Default Law Group
Law Offices of David Stern
Lender Processing Services
Litton Loan Servicing, LP
Cheryl Samons
Security Connections, Inc.
Action Date: October 10, 2010
Location: Charlotte, NC
On October 8, 2010, Bank of America announced it was extending its suspension of foreclosures to all 50 states. A review of the documents used by Bank of America to foreclose readily shows why this was the only appropriate action for Bank of America. In thousands of cases, Bank of America has used Mortgage Assignments specially prepared just for foreclosure litigation. On these assignments, the identity of the mortgage company officer assigning the mortgage to BOA is wrongly stated. Who has signed most frequently as mortgage officers on mortgage assignments used by BOA to foreclose? Regular signers include the “robo-signers” from Lender Processing Services in both Alpharetta, Georgia and Mendota Heights, Minnesota. LPS employees Liquenda Allotey, Greg Allen, John Cody and others, using dozens of different corporate titles, sign mortgage assignments stating BOA has acquired certain mortgages. When the mortgages involved originated from First Franklin Bank, BOA used Security Connections, Inc. in Idaho Falls, Idaho. Employees Melissa Hively, Vicki Sorg and Krystal Hall also signed for many different corporations for BOA. Litton Loan Servicing in Houston, Texas, a company owned by Goldman Sachs, also produced documents as needed by BOA, usually signed by Denise Bailey, Diane Dixon or Marti Noriega signing as officers of at least a dozen different mortgage companies and banks. BOA also has used mortgage assignments signed by Cheryl Samons, the office administrator for the Law Offices of David Stern, who has admitted to signing thousands of mortgage documents each month with no actual knowledge of the contents. On other cases, employees of the law firm Florida Default Law Group have signed for BOA, using various titles, including claiming to be Vice Presidents of Wells Fargo Bank, all while failing to disclose they actually worked for Florida Default. in most of these cases, BOA is acting as Trustee for residential mortgage-backed securitized trusts. These trusts are claiming to have acquired the mortgages in 2009 and 2010, even though the trusts deadline for acquiring mortgages was often in 2006 and 2007. In hundreds of cases, the mortgage assignments presented by BOA are actually signed months AFTER the foreclosure actions were commenced. At least 50 trusts using BOA as Trustee are involved in using these fraudulent documents. Each trust has between $1.5 billion and $2 billion of mortgages. The BOA documents have been used in thousands of cases, pending and completed, for at least three years. This massive problem cannot be “fixed” in 90 days, but a nationwide suspension of foreclosures is a good, responsible beginning.
Democracy NOW! News – Calls are growing for a nationwide moratorium on home foreclosures following the recent revelations that major lenders may have committed fraud while forcing thousands of people out of their homes. On Thursday the White House announced President Obama will not sign a bill approved by Congress that could have made it easier for banks to foreclose. We discuss the latest in the foreclosure crisis with Ohio Secretary of State Jennifer Brunner. This week Ohio filed a lawsuit accusing the lender Ally Financial and its GMAC Mortgage division of fraud in approving scores of foreclosures. Published with written permission from democracynow.org.
http://www.democracynow.org Provided to you under Democracy NOW! creative commons license. Copyright democracynow.org, an independent non-profit user funded news media, recognized and broadcast world wide.
The White House issued a statement Friday clarifying President Obama’s “pocket veto” of legislation that consumer advocates worried would have made it more difficult for homeowners to fight fraudulent foreclosures.
Some have been skeptical that a pocket veto, which allows the president to kill legislation simply by not signing it when Congress is not in session, was available because the Senate has, in fact, been holding pro-forma sessions.
So instead of just not signing the bill, Obama is also sending it back to the House, making it a “protective return” veto.
“To leave no doubt that the bill is being vetoed,” said Obama in a statement, “in addition to withholding my signature, I am returning H.R. 3808 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval.”
RESTON, Va. – (Business Wire) Mortgage Electronic Registration Systems (MERS) Chief Executive Officer R.K. Arnold today issued the following statement regarding the organization and clarifying certain aspects of its operations:
“MERS is one important component of the complex infrastructure of America’s housing finance system. Billions of dollars of mortgage money flow through the financial system every year. It takes many, often-unseen mechanical processes to properly get those funds into the hands of qualified homebuyers.
Technology designed to reduce paperwork has a very positive effect on families and communities. They may not see it, but these things save money and time, creating reliability and stability in the system. That’s important to keep the mortgage funds flowing to the consumers who need it.
With millions of Americans facing foreclosure, every element of the housing finance system is under tremendous strain. What we’re seeing now is that the foreclosure process itself was not designed to withstand the extraordinary volume of foreclosures that the mortgage industry and local governments must now handle.
MERS helps the mortgage finance process work better. The MERS process of tracking mortgages and holding title provides clarity, transparency and efficiency to the housing finance system. We are committed to continually ensuring that everyone who has responsibilities in the mortgage and foreclosure process follows local and state laws, as well as our own training and rules.”
Facts about MERS
(NOTE TO EDITORS:The following is attributed to MERS Communications Manager Karmela Lejarde)
FACT:Courts have ruled in favor of MERS in many lawsuits, upholding MERS legal interest as the mortgagee and the right to foreclose.
This legal right springs from two important facts:
1) MERS holds legal title to a mortgage as an agent for the owner of the loan
2) MERS can become the holder of the promissory note when the owner of the loan chooses to make MERS the holder of the note with the right to enforce if the mortgage loan goes into default.
MERS does not authorize anyone to represent it in a foreclosure unless both the mortgage and the note are in MERS possession. In some cases where courts have found against MERS, those cases have hinged on other procedural defects or improper presentation of MERS’s legal interests and rights. Citations can be found at the end of this document.*
FACT:MERS does not create a defect in the mortgage or deed of trust
Claims that MERS disrupts or creates a defect in the mortgage or deed of trust are not supported by fact or legal precedents. This is often used as a tactic by lawyers to delay or prevent the foreclosure. The mortgage lien is granted to MERS by the borrower and the seller and that is what makes MERS the mortgagee. The role of mortgagee is legal and binding and confers to MERS certain legal rights and responsibilities.
FACT:The trail of ownership does not change because of MERS
MERS does not remove, omit, or otherwise fail to report land ownership information from public records. Parties are put on notice that MERS is the mortgagee and notifications by third parties can be sent to MERS. Mortgages and deeds of trust still get recorded in the land records.
The MERS System tracks the changes in servicing rights and beneficial ownership. No legal interests are transferred on the MERS System, including servicing and ownership. In fact, MERS is the only publicly available comprehensive source for note ownership.
While this information is tracked through the MERS System, the paperwork still exists to prove actual legal transfers still occurred. No mortgage ownership documents have disappeared because loans were registered on the MERS System. These documents exist now as they have before MERS was created. The only pieces of paper that have been eliminated are assignments between servicing companies because such assignments become unnecessary when MERS holds the mortgage lien for the owner of the note.
FACT:MERS did not cause mortgage securitization
MERS was created as a means to keep better track of the mortgage servicing and beneficial rights as loans were getting bought and sold at a high rate during the late 1990s.
At the height of the housing market, low interest rates prompted some homeowners to refinance once, twice, even three times in the space of months. Banks were originating loans at more than double their usual rate. Assignments – the document that names the holder of the legal title to the lien – primarily between servicing companies, were piling up in county land record offices, awaiting recording. Many times the loans were getting refinanced before the assignments could get recorded on the old loan. The delay prevented lien releases from getting recorded in a timely manner, leaving clouds on title.
MERS was created to provide clarity, transparency and efficiency by tracking the changes in servicing rights and beneficial ownership interests. It was not created to enable faster securitization. MERS is the only publicly available source of comprehensive information for the servicing and ownership of the more than 64 million loans registered on the system. The Mortgage Identification Number (MIN), created by MERS, is similar in function to a motor vehicle VIN, which keeps track of these loans. Without MERS the current mortgage crisis would be even worse.
FACT:Lenders cannot “hide” behind MERS
MERS is the only comprehensive, publicly available source of the servicing and ownership of more than 64 million loans in the United States. If a homeowner needs to identify the servicer or investor of their loan, and it is registered in MERS, they can be helped through the MERS website or via toll-free number at 888-679-6377.
FACT:MERS fully complies with recording statutes
The purpose of recording laws is to show that a lien exists, which protects the mortgagee and any bona fide purchasers. When MERS is the mortgagee, the mortgage or deed of trust is recorded, and all recording fees are paid.
*NOTABLE LEGAL VICTORIES:
a. IN RE Mortgage Electronic Registration Systems (MERS) Litigation, a multi-district litigation case in federal court in Arizona who issued a favorable opinion, stating that “The MERS System is not fraudulent, and MERS has not committed any fraud.”
b. IN RE Tucker (9/20/2010) where a Missouri bankruptcy judge found that the language of the deed of trust clearly authorizes MERS to act on behalf of the lender in serving as the legal title holder.
c. Mortgage Electronic Registration Systems, Inc. v. Bellistri, 2010 WL 2720802 (E.D. Mo. 2010), where the court held that Bellistri’s failure to provide notice to MERS violated MERS’ constitutional due process rights.
Mortgage Electronic Registration Systems
Karmela Lejarde, 703-772-7156
Continue reading …MIAMI HERALD
