Via: b.daviesmd6605

July 9, 2010
The United States Bankruptcy Court for the Eastern District of California has issued a ruling dated May 20, 2010 in the matter of In Re: Walker, Case No. 10-21656-E-11 which found that 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.

The court found that MERS acted “only as a nominee” for Bayrock under the Deed of Trust and there was no evidence that the note was transferred. The opinion also provides that “several courts have acknowledged that MERS is not the owner of the underlying note and therefore could not transfer the note, the beneficial interest in the deed of trust, or foreclose on the property secured by the deed”, citing the well-known cases of In Re Vargas (California Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of authority of MERS), LaSalle Bank v. Lamy (New York), and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court).

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Via: b.daviesmd6605

The assignment Wells Fargo did for Deutsche Bank. Note on the assignment it says, ” Wells Fargo N.A. Attorney-in-fact for New Century Mortgage Corporation” — this violated California Civil Code 1095. It is suppose to say, “New Century Mortgage Corporation, by Wells Fargo N.A. as Attorney In Fact”

California Civil Code says Civil Code Section 1095 says, ” “When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact.”

There is a case, Hodge v. Hodge, 257 Cal. App. 2d 31 (1967), which says that if this is not followed exactly, the transfer is void. And obviously the judge agreed (thank goodness).

They don’t have a power of attorney to go with this assignment either! In discovery they gave us one that was done three months after the assignment; and six months after the NOD.

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• CCC 1095 When an attorney in fact executes an instrument transferring an estate in real property, they must subscribe the name of his principal to it, and his own name as attorney in fact.

Plaintiff correctly asserts that this assignment is invalid for the reason it violates CC § 1095, in that it was executed solely by BANK 1 as attorney-in-fact for BANK X, without subscribing BANK 1 name. See Morrison v. Bowman (1865) 29 Cal. 337, 341, 352; Mitchell v. Benjamin Franklin Bond & Indem. Corp. (1936) 13 Cal.App.2d 447, 448.