MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. (There is 3)
FK/A a concept “Whole Loan Book Entry” -1989 by Brian Hershkowitz
Into the Mortgage Netherworld
TM patent was signed/registered in 2003 3-4 years after MERS’ 1999?s date via Fmr. V.P. W. Hultman’s secretary Kathy McKnight [PDF link to depo pages 29-39].
MERS Announces Retirement of President and CEO R.K. Arnold
Industry Veteran Paul Bognanno to be interim President and CEO
STATES V. MERS
COMPLAINT | KENTUCKY v. MERSCORP HOLDINGS, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS)
BAIN vs. METROPOLITAN MORTGAGE GROUP INC. | Wash. Supreme Court: MERS CANNOT BE BENEFICIARY IN WASHINGTON STATE!
NIDAY vs GMAC, MERS | Oregon Appeals Court “Non Judicial foreclosures, Oregon Trust Deed Act., MERS has no right to be beneficiary”
MERS RICO COMPLAINT | Doug Welborn East Baton Rouge Parish Clerk of Court vs. BONY, MERSCORP SHAREHOLDERS
Eric Holder was a partner with Covington & Burling up until 2009 when he became the US. Attorney General for the Obama Administration. Covington & Burling had MERSCORP as a client.
MERS Corporate Seal $25.00!
MERS has absolutely NO EMPLOYEES.
Does MERS have any salaried employees?
Q Does MERS have any employees?
A Did they ever have any? I couldn’t hear you.
Q Does MERS have any employees currently?
Q In the last five years has MERS had any
Q To whom do the officers of MERS report?
A The Board of Directors.
Q To your knowledge has Mr. Hallinan ever
reported to the Board?
A He would have reported through me if there was
something to report.
Q So if I understand your answer, at least the
MERS officers reflected on Hultman Exhibit 4, if they
had something to report would report to you even though
you’re not an employee of MERS, is that correct?
MR. BROCHIN: Object to the form of the
A That’s correct.
Q And in what capacity would they report to you?
A As a corporate officer. I’m the secretary.
Q As a corporate officer of what?
Q So you are the secretary of MERS, but are not
an employee of MERS?
A That’s correct.
Q How many assistant secretaries have you
appointed pursuant to the April 9, 1998 resolution; how
many assistant secretaries of MERS have you appointed?
A I don’t know that number.
A I wouldn’t even begin to be able to tell you
Q Is it in the thousands?
Q Have you been doing this all around the
country in every state in the country?
Q And all these officers I understand are unpaid
officers of MERS?
Q And there’s no live person who is an employee
of MERS that they report to, is that correct, who is an
MR. BROCHIN: Object to the form of the
A There are no employees of MERS.
Is this the Cycle?
MERS has some mechanisms in place to try to make it more bankruptcy remote than its parent.
MERS has an independent director, formalities to indicate separateness from MERSCORP, the
requirement to have a unanimous vote of the board of directors to put itself into bankruptcy, and
the requirement that the independent director has to agree to incur indebtedness.
MERS SHAREHOLDERS/ OWNERS
The following organizations are current MERSCORP Holdings shareholders:
- American Land Title Association
- Bank of America
- CCO Mortgage Corporation
- CitiMortgage, Inc.
- CRE Finance Council
- Corinthian Mortgage Corporation
- EverHome Mortgage Company
- Fannie Mae
- First American Title Insurance Corporation
- Freddie Mac
- GMAC Residential Funding Corporation
- Guaranty Bank
- HSBC Finance Corporation
- MGIC Investor Services Corporation
- Morserv, Inc.
- Mortgage Bankers Association
- PMI Mortgage Insurance Company
- Stewart Title Guaranty Company
- SunTrust Morgage, Inc.
- United Guaranty Corporation
- Wells Fargo Bank, N.A.
- WMC Mortgage Corporation
WHO IS MERS?
Although only bankers are aware of it, there is a second wave of economic disaster starting to build up that will make the earlier one pale into insignificance. Let us start out with MERS, shall we?
MERS – Mortgage Electronic Registration Inc. – holds approximately 60 million American mortgages and is a Delaware corporation whose sole shareholder is Mers Corp. MersCorp and its specified members have agreed to include the MERS corporate name on any mortgage that was executed in conjunction with any mortgage loan made by any member of MersCorp. (UPDATE 12/13/2010: 66 MILLION American Mortgages)
Thus in place of the original lender being named as the mortgagee on the mortgage that is supposed to secure their loan, MERS is named as the “nominee” for the lender who actually loaned the money to the borrower. In other words MERS is really nothing more than a name that is used on the mortgage instrument in place of the actual lender. MERS’ primary function, therefore, is to act as a document custodian.
MERS was created solely to simplify the process of transferring mortgages by avoiding the need to re-record liens – and pay county recorder filing fees – each time a loan is assigned. Instead, servicer’s record loans only once and MERS’ electronic system monitors transfers and facilitates the trading of notes. It has very conservatively estimated that as of February, 2010, over half of all new residential mortgage loans in the United States are registered with MERS and recorded in county recording offices in MERS’ name
MersCorp was created in the early 1990’s by the former C.E.O.’s of Fannie Mae, Freddie Mac, Indy Mac, Countrywide, Stewart Title Insurance and the American Land Title Association. The executives of these companies lined their pockets with billions of dollars of unearned bonuses and free stock by creating so-called mortgage backed securities using bogus mortgage loans to unqualified borrowers thereby creating a huge false demand for residential homes and thereby falsely inflating the value of those homes. MERS marketing claims that its “paperless systems fit within the legal framework of the laws of all fifty states” are now being vetted by courts and legal commentators throughout the country.
The MERS paperless system is the type of crooked rip-off scheme that is has been seen for generations past in the crooked financial world. In this present case, MERS was created in the boardrooms of the most powerful and controlling members of the American financial institutions. This gigantic scheme completely ignored long standing law of commerce relating to mortgage lending and did so for its own personal gain.
That the inevitable collapse of the crooked mortgage swindles would lead to terrible national repercussions was a matter of little or no interest to the upper levels of America’s banking and financial world because the only interest of these entities was to grab the money of suckers, keep it in the form of ficticious bonuses, real estate and very large accounts in foreign banks. The effect of this system has led to catastrophic meltdown on both the American and global economy.
MERS, as has clearly been proven in many civil cases, does not hold any promissory notes of any kind. A party must have possession of a promissory note in order to have standing to enforce and/or otherwise collect a debt that is owed to another party. Given this clear-cut legal definition, MERS does not have legal standing to enforce or collect on the over 60 million mortgages it controls and no member of MERS has any standing in an American civil court.
MERS has been taken to civil courts across the country and charged with a lack of standing in repossession issues. When the mortgage debacle initially, and inevitably, began, MERS always routinely brought actions against defaulting mortgage holders purporting to represent the owners of the defaulted mortgages but once the courts discovered that MERS was only a front organization that did not hold any deed nor was aware of who or what agencies might hold a deed, they have routinely been denied in their attempts to force foreclosure.
In the past, persons alleging they were officials of MERS in foreclosure motions, purported to be the holders of the mortgage, when, in fact, they not only were not the holder of the mortgage but, under a court order, could not produce the identity of the actual holder. These so-called MERS officers have usually been just employees of entities who are servicing the loan for the actual lender. MERS, it is now widely acknowledged by the courts, has no legal right to foreclose or otherwise collect debt which are evidenced by promissory notes held by someone else.
The American media routinely identifies MERS as a mortgage lender, creditor, and mortgage company, when in point of fact MERS has never loaned so much as a dollar to anyone, is not a creditor and is not a mortgage company. MERS is merely a name that is printed on mortgages, purporting to give MERS some sort of legal status, in the matter of a loan made by a completely different and almost always,a totally unknown entity.
The infamous collapse of the American housing bubble originated, in the main, with one Angelo Mozilo, CEO of the later failed Countrywide Mortgage.
Mozilo started working in his father’s butcher shop, in the Bronx, when he was ten years old. He graduated from Fordham in 1960, and that year he met David Loeb. In 1968, Mozilo and Loeb created a new mortgage company, Countrywide, together. Mozilo believed the company should make special efforts to lower the barrier for minorities and others who had been excluded from homeownership. Loeb died in 2003
In 1996, Countrywide created a new subsidiary for subprime loans. Countrywide Financial’s former management
- Angelo R. Mozilo, cofounder, chairman of the board, chief executive officer
- David S. Loeb, cofounder, President and Chairman from 1969 to 2000
- David Sambol, president, chief operating officer, director
- Eric P. Sieracki, chief financial officer, executive managing director
- Jack Schakett, executive managing director, chief operating officer
- Kevin Bartlett, executive managing director, chief investment officer
- Andrew Gissinger, executive managing director, chief production officer, Countrywide Home Loans
- Sandor E. Samuels, executive managing director, chief legal officer and assistant secretary
- Ranjit Kripalani, executive managing director and president, Capital Markets
- Laura K. Milleman, senior managing director, chief accounting officer
- Marshall Gates, senior managing director, chief administrative officer
- Timothy H. Wennes, senior managing director, president and chief operating officer, Countrywide Bank FSB
- Anne D. McCallion, senior managing director, chief of financial operations and planning
- Steve Bailey, senior managing director of loan administration, Countrywide Home Loans
The standard Countrywide procedure was to openly solicit persons who either had no credit or could not obtain it, and, by the use of false credit reports drawn up in their offices, arrange mortgages. The new home owners were barely able to meet the minimum interest only payments and when, as always happens, the mortgage payments are increased to far, far more than could be paid, defaults and repossessions were inevitable.
Countrywide sold these mortgages to lower-tier banks which in turn, put them together in packages and sold them to the large American banks. These so-called “bundled mortgages” were quickly sold by these major banking houses to many foreign investors with the comments that when the payments increased, so also would the income from the original mortgage. In 1996, Countrywide created a new subsidiary for subprime loans.
At one point in time, Countrywide Financial Corporation was regarded with awe in the business world. In 2003, Fortune observed that Countrywide was expected to write $400 billion in home loans and earn $1.9 billion. Countrywide’s chairman and C.E.O., Angelo Mozilo, did rather well himself. In 2003, he received nearly $33 million in compensation. By that same year, Wall Street had become addicted to home loans, which bankers used to create immensely lucrative mortgage-backed securities and, later, collateralized debt obligations, or C.D.O.s—and Countrywide was their biggest supplier. Under Mozilo’s leadership, Countrywide’s growth had been astonishing.
He was aiming to achieve a market share—thirty to forty per cent—that was far greater than anyone in the financial-services industry had ever attained. For several years, Countrywide continued to thrive. Then, inevitably, in 2007, subprime defaults began to rocket upwards , forcing the top American bankers to abandoned the mortgage-backed securities they had previously prized. It was obvious to them that the fraudulent mortgages engendered by Countrywide had been highly successful as a marketing program but it was obvious to everyone concerned, at all levels, that the mortgages based entirely on false and misleading credit information were bound to eventually default. In August of 2007, the top American bankers cut off Countrywide’s short-term funding which seriously hindered its ability to operate, and in just a few months following this abandonment, Mozilo was forced to choose between bankruptcy or selling out to the best bidder.
In January, 2008, Bank of America announced that it would buy the company for a fraction of what Countrywide was worth at its peak. Mozilo was subsequently named a defendant in more than a hundred civil lawsuits and a target of a criminal investigation. On June 4th, 2007 the S.E.C., in a civil suit, charged Mozilo, David Sambol, and Eric Sieracki with securities fraud; Mozilo was also charged with insider trading. The complaint formalized a public indictment of Mozilo as an icon of corporate malfeasance and greed.
In essence, not only bad credit risks were used to create and sell mortgages on American homes that were essentially worthless. By grouping all of these together and selling them abroad, the banks all made huge profits. When the kissing had to stop, there were two major groups holding the financial bag. The first were the investors and the second were, not those with weak credit, but those who had excellent credit and who were able, and willing to pay off their mortgages.
Unfortunately, just as no one knows who owns the title to any home in order to foreclose, when the legitimate mortgage holder finally pays off his mortgage, or tries to sell his house, a clear title to said house or property cannot ever be found so, in essence, the innocent mortgage payer can never own or sell his house. This is a terrible economic time bomb quietly ticking away under our feet and if, and when, it explodes, another aspect of our former lives are but a fond memory.
Basic Corporate Information
- MERS is incorporated within the State of Delaware.
- MERS was first incorporated in Delaware in 1999.
- The total number of shares of common stock authorized by MERS’ articles of incorporation is 1,000.
- The total number of shares of MERS common stock actually issued is 1,000.
- MERS is a wholly owned subsidiary of MERSCorp, Inc.
- MERS’ principal place of business at 1595 Spring Hill Road, Suite 310, Vienna, Virginia 22182
- MERS’ national data center is located in Plano, Texas.
- MERS’ serves as a “nominee” of mortgages and deeds of trust recorded in all fifty states.
- Over 50 million loans have been registered on the MERS system. (UPDATE 9/1/2010: 65 MILLION American Mortgages)
- MERS’ federal tax identification number is “541927784”.
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.
MERS’ Accounting of Mortgage Indebtedness / MERS Not At Risk
- MERS is not entitled to receive any of the payments associated with the alleged mortgage indebtedness.
- MERS is not entitled to receive any of the interest revenue associated with mortgage indebtedness for which it serves as “nominee”.
- Interest revenue related to the mortgage indebtedness for which MERS serves as “nominee” is never reflected within MERS’ bookkeeping or accounting records nor does such interest influence MERS’ earnings.
- Mortgage indebtedness for which MERS serves as the serves as “nominee” is not reflected as an asset on MERS’ financial statements.
- Failure to collect the outstanding balance of a mortgage loan will not result in an accounting loss by MERS.
- When a foreclosure is completed, MERS never actually retains or enjoys the use of any of the proceeds from a sale of the foreclosed property, but rather would remit such proceeds to the true party at interest.
- MERS is not actually at risk as to the payment or nonpayment of the mortgages or deeds of trust for which it serves as “nominee”.
- MERS has no pecuniary interest in the promissory notes or the mortgage indebtedness for which it serves as “nominee”.
- MERS is not personally aggrieved by any alleged default of a promissory note for which it serves as “nominee”.
- There exists no real controversy between MERS and any mortgagor alleged to be in default.
- MERS has never suffered any injury by arising out of any alleged default of a promissory note for which it serves as “nominee”.
MERS’ Interest in the Mortgage Security Instrument
- MERS holds the mortgage lien as nominee for the owner of the promissory note.
- 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).
- MERS simply holds legal title to mortgages and deeds of trust as a nominee for the owner of the promissory note.
- MERS immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.
- 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.
- 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 or deed of trust remains in MERS after such transfers and is tracked by MERS in its electronic registry.
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 As Holder
- MERS is never the holder of a promissory note in the ordinary course of business.
- MERS is not a custodian of promissory notes underlying the security instrument for which it serves as “nominee”.
- MERS does not even maintain copies of promissory notes underlying the security instrument for which it serves as “nominee”.
- Sometimes when an investor or servicer desires to foreclose, the servicer obtains the promissory note from the custodian holding the note on behalf of the mortgage investor and places that note in the hands of a servicer employee who has been appointed as an officer (vice president and assistant secretary) of MERS by corporate resolution.
- When a promissory note is placed in the hands of a servicer employee who is also an MERS officer, MERS asserts that this transfer of custody into the hands of this nominal officer (without any transfer of ownership or beneficial interest) renders MERS the holder.
- No consideration or compensation is exchanged between the owner of the promissory note and MERS in consideration of this transfer in custody.
- Even when the promissory note is physically placed in the hands of the servicer’s employee who is a nominal MERS officer, MERS has no actual authority to control the foreclosure or the legal actions undertaken in its name.
- MERS will never willingly reveal the identity of the owner of the promissory note unless ordered to do so by the court.
- MERS will never willingly reveal the identity of the prior holders of the promissory note unless ordered to do so by the court.
- Since the transfer in custody of the promissory note is not for consideration, this transfer of custody is not reflected in any contemporaneous accounting records.
- MERS is never a holder in due course when the transfer of custody occurs after default.
- MERS is never the holder when the promissory note is shown to be lost or stolen.
MERS’ Role in Mortgage Servicing
- MERS does not service mortgage loans.
- MERS is not the owner of the servicing rights relating to the mortgage loan and MERS does not service loans.
- 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.
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 MERS’ name.
MERS’ Access To or Control Over Records or Documents
- MERS has never maintained archival copies of any mortgage application for which it serves as “nominee”.
- In its regular course of business, MERS as a corporation does not maintain physical possession or custody of promissory notes, deeds of trust or other mortgage security instruments on behalf of its principals.
- MERS as a corporation has no archive or repository of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
- MERS as a corporation is not a custodian of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
- MERS as a corporation has no archive or repository of the deeds of trust or other mortgage security instruments for which it serves as nominee.
- In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the promissory notes secured by the mortgage security instruments for which it serves as nominee.
- In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the mortgage security instruments for which it serves as nominee.
- Copies of the instruments attached to MERS’ petitions or complaints so not come from MERS’ corporate files or archives.
- In its regular course of business, MERS as a corporation does not input the promissory note or mortgage security instrument ownership registration data for new mortgages for which it serves as nominee, but rather the registration information for such mortgages are entered by the “member” mortgage lenders, investors and/or servicers originating, purchasing, and/or selling such mortgages or mortgage servicing rights.
- MERS does not maintain a central corporate archive of demands, notices, claims, appointments, releases, assignments, or other files, documents and/or communications relating to collections efforts undertaken by MERS officers appointed by corporate resolution and acting under its authority.
Management and Supervision
- In preparing affidavits and certifications, officers of MERS, including Vice Presidents and Assistant Secretaries, making representations under MERS’ authority and on MERS’ behalf, are not primarily relying upon books of account, documents, records or files within MERS’ corporate supervision, custody or control.
- Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf, do not routinely furnish copies of these affidavits or certifications to MERS for corporate retention or archival.
- Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf are not working under the supervision or direction of senior MERS officers or employees, but rather are supervised by personnel employed by mortgage investors or mortgage servicers.
This should be a pretty good start for those of you faced with a foreclosure in which MERS is falsely asserting that it is the owner of the promissory note. Whether MERS is or was ever the holder is a FACT QUESTION which can be determined only by ascertainly the chain of custody of the promissory note. When the promissory note is lost, missing or stolen, MERS is NOT the holder.
By William A. Roper, Jr. (Copyright 2007)
Excerpted from the MSFraud Forum thread “Facts About MERS / MERS Unmasked”
[VIDEO] Christopher L. Peterson: Foreclosure Fiasco? Lost Promissory Notes and the Mortgage Electronic Registration System (MERS)
From the transcript of evidentiary hearing –
MERS v. Cabrera:
“It truly concerns me, however, that thousands and thousands — thousands and thousands of mortgage foreclosure actions have been filed with these allegations. I am not certain what remedy, if any, these people would have were it to be determined that MERS was not ever the proper party notwithstanding that these folks [might] have been in default what their recourse, if any, would be. I’m not certain with the satisfaction of mortgages that have been filed on behalf of MERS how good those are and I am not certain how good title to property is that people bought at these foreclosure sales if it turns or becomes established that MERS was indeed not only not the right party but misrepresented by way of their pleadings and affidavits that they held something they didn’t own, so I’m not certain of the consequences but it seems vast.”
- The Honorable Judge Jon Gordon – September 2005 (Emphasis added)
MERRIT v. BARTHOLICK, 36 NY 44 – 1867
|It has long been held that a ” `mortgage is only an incident to the debt it was given to secure, and cannot be separated therefrom [.]‘”
- in NORTHSTREAM INVESTMENTS, INC. v. 1804 COUNTRY STORE CO., 2005
|I wish to note, however, that to the extent that the County and various amici argue that MERS has violated the clear prohibition against separating a lien from its debt and that MERS does not have standing to bring foreclosure actions, those issues remain for another day
- in IN THE MATTER OF MERSCORP, INC. v. Romaine, 2006
|In addressing the issue of standing, it is well settled that an action to foreclose on a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity
- in GRO-WIT CAPITAL, LTD. v. 1080 UTICA, LLC, 2010
|An assignment of one paper does not transfer an independent cause of action, as for instance, the assignment of a mortgage does not transfer the bond it is given to secure.
- in Brief and Points for Respondent Charles E. Leland
|The failure of Warner to produce the bond at the time of the assignment was sufficient to put the respondent on inquiry, and,-if unexplained, to operate as notice of the defect in Warner’s title.
- in McMaster’s Commercial Decisions affecting the Banker and Merchant
|Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity
- in US BANK, NA v. Collymore, 2009
|Nor is it reasonable to suppose that S purchased the lien independently of the debt, leaving C free to collect both the price from S and the debt from D. Without an assignment of the debt, the purchase of a lien that secures it is a nullity.
- in Some Exceptions to the Suretyship Statute of Frauds: A Tale of Two Courts
|This is the necessary legal conclusion and is recognized as the rule by a long course of judicial decisions… for the legal maxim is, the incident shall pass by the grant of the principal, but not the principal by the grant of the incident.
- in in re Brager, 1984
|So that, unless we are authorized to say, that such was the intent of the parties, we cannot hold that it did.
- in 5-Star Management, Inc. v. Rogers, 1996
Check back frequent as I will be constantly working on this with links
MERS v. Nebraska Dept of Banking and Finance – State Appellate, MERS demands to be recognized as having no actionable interest in title. 2005, Cite as 270 Neb 529
Merscorp, Inc., et al., Respondents, v Edward P. Romaine, & c., et al., Appellants, et al., Defendant the fact that the Mortgage and Deed of Trust are separated is recognized (concurring opinion). While affirming MERS could enter in the records as “nominee”, the court recognized many inherent problems. Rather than resolve them, they sloughed them off to the legislature. 2006
The Boyko Decision -Federal District Judge Christopher Boyko of the Eastern Division of the Northern District of Ohio Federal Court overturns 14 foreclosure actions with a well reasoned opinion outlining the failure of the foreclosing party to prove standing. This decision started the movement of challenging the standing of the foreclosing party. Oct 2007
Landmark National Bank v Kesler – KS State Supreme Court – MERS has no standing to foreclose and is, in fact, a straw man. Oct 2009.
The importance of the findings of the Supreme Court of Kansas cannot be overemphasized. It is generally the law in all states that if the law of one state has not specifically addressed a specific legal issue that the court may look to the law of states which have. The Kansas Court acknowledged that the case was one of “first impression in Kansas”, which is why the Kansas Court looked to legal decisions from California, Idaho, New York, Missouri, and other states for guidance and to support its decision. As we have previously reported, the Ohio Courts have looked to the legal decisions of New York to resolve issues in foreclosure defense, most notably issues of standing to institute a foreclosure.
It is practically certain that this decision will be the subject of review by various courts. MERS has already threatened a “second appeal” (by requesting “reconsideration” by the Supreme Court of Kansas of its decision by the entire panel of Judges in that Court). However, for now, the decision stands, which decision is of monumental importance for borrowers. It thus appears that the tide is finally starting to turn, and that the courts are beginning to recognize the extent of the wrongful practices and fraud perpetrated by “lenders” and MERS upon borrowers, which conduct was engaged in for the sole purpose of greed and profit for the “lenders” and their ilk at the expense of borrowers.
MERS, Inc., Appellant v Southwest Homes of Arkansas, Appellee The second State Supreme Court ruling – AR 2009
BAC v US Bank – FL Appellate court upholds the concept of determining the standing of the foreclosing party before allowing summary judgement. All cases in FL must now go through this process. If you want to have fun, read the plaintiff’s brief. 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court, Kings County, NY 2009
In Re: Joshua & Stephanie Mitchell – US Federal Bankruptcy Court, NV 2009
In Re: Wilhelm et al., Case No. 08-20577-TLM (opinion of Hon. Terry L. Myers, Chief U.S. Bankruptcy Judge, July 9, 2009) – Chief US Bankruptcy Judge, ID – MERS, by its construction, separates the Deed from the Mortgage
MERS v Johnston – Vermont Superior Court Decision
Wells Fargo v Jordon – OH Appellate Court
Weingartner et al v Chase Home Finance et al – US District Court (Nev): Two pro se plaintiffs sue for relief re: MERS assignments. Very technical decision but two things are apparent. First, the court has little patience for pro se plaintiffs who throw everything out there wasting the court’s time and second, even though the court threw out most of what the plaintiffs were arguing for, they did side with the plaintiff. Provides a good insight to the court’s reasoning vis a vis MERS assignments. Also makes clear you shouldn’t try this from home. Please seek legal counsel.
Schneider et al v Deutsche Bank et al (FL): Class action suit (the filing) seeking to recover actual and statutory damages for violations of the foreclosure process. Provides an excellent description of the securitization process and the problems with assignments. Any person named as a defendant in a suit by Deutsche Bank should contact the firms involved for inclusion in this suit.
JP Morgan Chase v New Millenial et. al. – FL Appellate which clearly demonstrates the chaos which can ensue when there is a failure to register changes of ownership at the county recorder’s office. Everyone operates in good faith, then out of nowhere, someone shows up waving a piece of paper. The MERS system, while not explicitly named, is clearly the culprit of the chaos. 2009
In Re: Walker, Case No. 10-21656-E-11 – Eastern District of CA Bankruptcy court rules MERS has NO actionable interest in title. “Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.” “MERS could not, as a matter of law, have transferred the note to Citibank from the original lender, Bayrock Mortgage Corp.” The Court’s opinion is headlined stating that MERS and Citibank are not the real parties in interest.
In re Vargas, 396 B.R. at 517-19. Judge Bufford made a finding that the witness called to testify as to debt and default was incompetent. All the witness could testify was that he had looked at the MERS computerized records. The witness was unable to satisfy the requirements of the Federal Rules of Evidence, particularly Rule 803, as applied to computerized records in the Ninth Circuit. See id. at 517-20. The low level employee could really only testify that the MERS screen shot he reviewed reflected a default. That really is not much in the way of evidence, and not nearly enough to get around the hearsay rule.
In Re: Joshua and Stephanie Mitchell, Case No. BK-S-07-16226-LBR [U.S. Bankruptcy Court, District of Nevada, Memorandum Opinion of August 19, 2008]. Federal Court in Nevada attacked MERS’ purported “authority”, finding that there was no evidence that MERS was the agent of the note’s holder
Mortgage Electronic Registration Systems, Inc. v. Girdvainis, Sumter County, South Carolina Court of Common Pleas Case No. 2005-CP-43-0278 (Order dated January 19, 2006, citing to the representations of MERS and court findings in Mortgage Electronic Registration Systems, Inc. v. Nebraska Dept. of Banking and Finance, 270 Neb. 529, 704 NW 2d. 784). As such, ALL MERS assignments are suspect at best, and may in fact be fraudulent. The Court of Common Pleas of Sumter County, South Carolina also found that MERS’ rights were not as they were represented to be; that MERS had no rights to collect on any debt because it did not extend any credit; none of the borrowers owe MERS any money; that MERS does not own the promissory notes secured by the mortgages; and that MERS does not acquire any loan or extension of credit secured by a lien on real property.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. SAUNDERS2010 ME 79 Docket: Cum-09-640.Supreme Judicial Court of Maine. | Ordered dated August 12, 2010. We conclude that although MERS is not in fact a “mortgagee” within the meaning of our foreclosure statute, 14 M.R.S. §§ 6321-6325, and therefore had no standing to institute foreclosure proceedings, the real party in interest was the Bank and the court did not abuse its discretion by substituting the Bank for MERS. Because, however, the Bank was not entitled to summary judgment as a matter of law, we vacate the judgment and remand for further proceedings.
MERS ‘AGENT’ PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic Registration Systems, Inc. v. Folkes, 2010 NY Slip Op 32007 – NY: Supreme Court The settlement agent on all of the MERS documents was listed as Peter Port, Esq., undeniably plaintiffs agent. According to an affidavit, with documents attached from Ms. Nichole M. Orr, identified as an Assistant Vice President and Senior Operational Risk Specialist for Bank of America Home Loans, the successor-in-interest to plaintiff America’s Wholesale Lender (April 1, 2010) certain wire transfers were made on November 23, 2004 to Mr. Port. The money appears to have come from an account with JP Morgan, but one of the documents also shows, inexplicably, that Mr. Port then sent $435,067.73 of this money to Cheron A. Ramphal at 14917 Motley Road, Silver Springs, MD. It should also be noted, as it was in the decision of February 5, 2008 by Judge Payne, that Mr. Port pled guilty in March 2006 in Federal District Court in New Jersey to providing false documents in a scheme to commit mortgage fraud.
‘NO PROOF’ MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC Bank, etc. v. Miller, et al. The “Assignment of Mortgage,” which is attached as exhibit E to the opposition papers, makes no reference to the note, and only makes reference to the mortgage being assigned. The Assignment has a vague reference to note wherein it states that “the said assignor hereby grants and conveys unto the said assignee, the assignor’s beneficial interest under the mortgage, “but this is the only language in the Assignment which could possibly be found to refer to the note.
Contrary to the affirmation of Ms. Szeliga in which she represented, in paragraph 17, that there was language in the assignment which specifically referred to the note, the assignment in this case does not contain °a specific reference to the Note.
In light of the foregoing, the Court is satisfied that there is insufficient proof to establish that both the note and the mortgage have been assigned to the Plaintiff, and therefore, it is hereby ORDERED that the Plaintiff has no standing to maintain the foreclosure action; and it is further ORDERED that the application of Defendant, Jeffrey F. Miller, to dismiss is granted, without prejudice, to renew upon proof of a valid assignment of the note.
Judge ARTHUR SCHACK’s COLASSAL Steven J. BAUM “MiLL” SMACK DOWN!! MERS TWILIGHT ZONE! | HSBC BANK v. Yeasmin The MERS mortgage twilight zone was created in 1993 by several large “participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system.
UNION BANK CO. v. NORTH CAROLINA FURNITURE EXPRESS, LLC.: MERS ‘GETS FORECLOSED’| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT OF APPEAL: While an assignment typically transfers the lien of the mortgage on the property described in the mortgage, as BAC acknowledged in its reply brief, an assignee can only take, and the assignor can only give, the interest currently held by the assignor. R.C. 5301.31. With that stated, it is clear under the facts of this case that BAC never obtained an interest in the property; thus, it could not have been substituted as a party-defendant in the 2008 foreclosure action. Here, with respect to the 2008 foreclosure action, the date the last party was served with notice was on January 28, 2009, which was almost six months before the purported assignment from MERS to BAC. Next, on March 11, 2009, the trial court issued a judgment entry of default against MERS foreclosing on its interest in the property. Once again, this default judgment was entered against MERS almost three months before the purported assignment from MERS to BAC occurred. The effect of this default judgment against MERS resulted in MERS having “no interest in and to said premises and the equity of redemption of said Defendants in the real estate described in Plaintiff’s Complaint shall be forever cut off, barred, and foreclosed.” (2008 CV 0267, Mar. 10, 2009 JE). Nevertheless, according to the documents filed by BAC to evidence its assignment from MERS, MERS assigned its interest to BAC on June 1, 2009. (2009 CV 312, Oct. 7, 2009 JE, Ex. A). Consequently, as a result of the already entered default judgment against MERS, when BAC was assigned MERS’ interest in the property on June 1, 2009, BAC did not receive a viable interest in the property. See Quill v. Maddox (May 31, 2002), 2nd Dist. No. 19052, at *2 (mortgagee’s assignee failed to establish that it had an interest in the property, as mortgagee’s interest was foreclosed by the court before mortgagee assigned its interest to assignee, which could acquire no more interest than mortgagee held). Thus, we find that it was reasonable for the trial court to have denied the motion to substitute BAC as a party-defendant for MERS given its lack of interest in the property.
HSBC v. Thompson: HSBC’s Irregularities: Mortgage Documentation and Corporate Relationships with Ocwen, MERS, and Delta Even if HSBC had provided support for the proposition that ownership of the note is not required, the evidence about the assignment is not properly before us. The alleged mortgage assignment is attached to the rejected affidavits of Neil. Furthermore, even if we were to consider this “evidence,” the mortgage assignment from MERS to HSBC indicates that the assignment was prepared by Ocwen for MERS, and that Ocwen is located at the same Palm Beach, Florida address mentioned in Charlevagne and Antrobus. See Exhibit 3 attached to the affidavit of Chomie Neil. In addition, Scott Anderson, who signed the assignment, as Vice-President of MERS, appears to be the same individual who claimed to be both Vice-President of MERS and Vice-President of Ocwen. See Antrobus, 2008 WL 2928553, * 4, and Charlevagne, 2008 WL 2954767, * 1.
MERS v. TORR NY JUDGE SPINNER DENIES Deutsche & MERS for NOT Recording Mortgage, Make up Affidavit and Assignment! MERS ‘QUIET TITLE’ FAIL: To establish a claim of lien by a lost mortgage there must be certain evidence (e.s.) demonstrating that the mortgage was properly executed with all the formalities required by law and proof of the contents (e.s.) of such instrument. … Here Burnett’s affidavit simply states that the original mortgage is not in Deutsch Bank’s files, and that he is advised (e.s.) that the title company is out of business. Burnett gives no specifics as to what efforts were made to locate the lost mortgage…. More importantly, there is no affidavit from MLN by an individual with personal knowledge of the facts that the complete file concerning this mortgage was transferred to Deutsch Bank and that the copy of the mortgage submitted to the court is an authentic copy of Torr’s Mortgage.” (e.s.)
LPP MORTGAGE v. SABINE PROPERTIES: FINAL DISPOSITION| NO Evidence ‘MERS’ Owned The NOTE, Could NOT ASSIGN IT NY SUPREME COURT: FINAL DISPOSITION
Here, there are no allegations or evidence that MERS was the owner of the note such that it could assign it to LPP. Thus, the assignment from MERS was insufficient to confer ownership of the note to LPP and it has no standing to bring this action. Kluge v. F umz ~1, 45 AD2d at 538 (holding that the assignment of a mortgage without transfer of the debt is a nullity); Johnson v. Melnikoff, 20 Misc3d 1142(A), “2 (Sup Ct Kings Co. 2008), n. 2, afr, 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS which did not include the underlying debt were a legal nullity); m e Elect ro pic Registration Svstem v, Coakley, 41 AD3d 674 (2d Dept 2007)(holding that MERS had standing to bring foreclosure proceeding based on evidence that MERS was the lawful holder of the promissory note and the mortgage).
Thus, even assuming arguendo that the language of the assignment from MERS to LPP could be interpreted as purporting to assign not only the mortgage but also the note, such assignment is invalid since based on the record, MERS lacked an ownership interest in the note. $ee LaSalle Bank Nat. Ass’n v. Lamv, 12 Misc3d 1191(A), “3 (Sup Ct Suffolk Co. 2006) (noting that “the mortgage is merely an incident of and collateral security for the debt and an assignment of the mortgage does not pass ownership of the debt itself ’);
WACHOVIA BANK, NATIONAL ASSOCIATION, against –STUART BRENNER, et aI. : Defendant’ s answer contains a defense of “lack of standing.” Plaintiff has failed to establish it was the holder of the note and the mortgage securing it when the action was commenced. In that regard, plaintiff relies on an undated assignment of the mortgage by MERS as nominee acknowledged by a Texas notary on July 18, 2009. The note sued on does not contain an indication it has been negotiated. The undated assignment by MERS contains a provision at the assignment of the mortgage is “TOGETHER with the notes described in said mortgage.” The record before me is devoid of proof that MERS as nominee for purposes of recording had authority to assign the mortgage. However, assuming it had such authority since it is a party to the mortgage and such authority might be implied , there has been a complete failure to establish MERS, as a non-party to the note, to negotiate its transfer. A transfer of the note effects a transfer of the mortgage MERS vs. Coakley, 41 AD3 674), the assignment of a mortgage without a valid transfer of the mortgage note is a nullity (Kluge vs. Fugazv, 145 AD2 537).
FULL DEPOSITION of Mortgage Electronic Registration Systems (MERS) PRESIDENT & CEO R.K. ARNOLD “MERSCORP”
MUST HAVE ARTICLES
by Christopher L. Peterson, Law Professor University of Utah
“Mortgage Electronic Registration Systems, Inc.: A Survey of Cases Discussing MERS’ Authority to Act “
by John Hooge Attorney at Law /Kansas “Excellent review of MERS cases by Bankruptcy Judges”
WHISTLE BLOWER | Report On Fraudulent & Forged Assignments Of Mortgages & Deeds In U.S. Foreclosures
Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory by Christopher L. Peterson
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