NEVADA BKR JUDGE KNOCKS MERS ON STANDING ON LIFT STAY MOTION
THANK YOU TO Deontos: This
is regarding “Standing” to obtain “Relief from Stay”. Riegle concluded
MERS lacks “standing”. Stay tuned on this ……. It might
really wreak havoc on the MERS menace in Nevada.
EXCERPTED CASE FILE:
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
* * * * * *
In re ) Case No. BK-S-07-16226-LBR
) Chapter 7
JOSHUA & STEPHANIE MITCHELL, )
)
Debtor(s). )
) DATE: August 19, 2008
) TIME: 3:30 p.m.
________________________________________ )
MEMORANDUM OPINION
Mortgage Electronic Recording Systems, Inc. (“MERS”) through various
counsel has filed a number of motions to lift stay. Some of the motions
were filed in the name of MERS, 1 while others have been filed in the
name of MERS as the nominee for another entity. An order for joint
briefing was entered because the substantially same issues were
presented in the motions, and a joint hearing was held. Mitchell
(#07-16226) has been designated as the lead case. The trustee or
counsel for the debtor in these cases has opposed the lift-stay motions
on the grounds of standing and that MERS is not the real party in
interest.
The initial response filed by MERS contained no evidentiary support. Rather it described the role of MERS and its members by relying on law review articles and the recitation of facts in other cases in other districts involving MERS. Prior to the initial argument, MERS attempted to withdraw the motions filed in all but four of the cases. MERS then filed a declaration at the court’s direction explaining why the motions were withdrawn. The declaration of William Hultman was filed in Dart. The declaration, in addition to explaining MERS’ rationale for 3 withdrawing the motions, also attached as exhibits copies of the MERS Membership Application, the MERSCorp. Inc. Rules of Membership, the MERS Procedural Manual, and the MERS Terms and Conditions of Membership. The court also requested appropriate evidentiary 4 support for the allegations concerning the relationship between MERS and the entities for whom the motions were brought. A supplemental declaration was filed in Michell, the lead case.5 As noted, MERS has attempted to withdraw all but four of its original motions, leaving only Dart (#08-11007), Hawkins (#07-13593), Ramirez-Furiati (#08-10427), and Zeigler (#08- 10718). MERS admits that it failed to follow its own procedures in the motions it wants to withdraw. The debtor, the chapter 13 trustee, and MERS subsequently stipulated to a lift of stay 6 in Ramirez-Furiati which the court approved with the acknowledgment that the order contained no finding about MERS’ standing. This court will discuss the issues raised in the motions that MERS attempts to withdraw, and by this order issues its ruling in Dart and Hawkins, which are 8 the two cases that are now pending before it. 9
The court has advised the parties that it would consider any information contained on the MERS website at http://www.mersinc.org/ unless an objection was made. No objection has been filed by either party. The court thus takes judicial notice of the contents of the MERS website. …………………………..
CONCLUSION
The lift-stay motions in Dart and Hawkins are denied. MERS may not enforce the
notes as the alleged beneficiary. While MERS may have standing to
prosecute the motion in the name of its Member as a nominee, there is
no evidence that the named nominee is entitled to enforce the note or
that MERS is the agent of the note’s holder. Indeed, the evidence is to
the contrary, the note has been sold, and the named nominee no longer
has any interest in the note.
IT IS SO ORDERED.
Motion
full file:
http://www.nvb.uscourts.gov/Opinions/Riegle/07-16226%20Opinion.pdf
A simple strategy is to claim the Assignments are clear Fraud, based on their lack of any Power of Attorney, any MERS AVP or other agent is an employee of some other company.
For example, Carrie A Hoover, who is known to sign as a MERS AVP, is a Countrywide employee.
Challenge any BOA loan, you cannot simply absorb a company in an all stock transaction and claim to have Lawful Consideration in exchange for the Endorsement of a Promissory Note. That’s bogus, insulting to the Court, but you must call out the Fraud and invoke the Judge’s rage. If you wait for the Judge to call out the Fraud, you will be waiting for a White Knight, like Judge Shack…only one Angel in the evil world of Justice.
zurenarrh,
I’m telling you, as simple as it soungs, check all your dates, look at all the minor details, they may lead somewhere big.
is your case posted anywhere?
It’s almost like there must be some really big secret about MERS, I mean the soap opera comes way over the line of unbelievable.
bt,
While I believe my TRO complaint was well-written and should have been granted on its merits, I don’t believe that its merits were what got us the TRO. I think it’s more like what Neil has said here on the site: “A good lawyer knows the law and a great lawyer knows the judge.”
That said, I’ll share the gist of the complaint with you…
1) We named Bank of America, FSB, Bank of America Home Loans Servicing, and Recontrust as Defendants. We did not include MERS as Defendants even though they fraudulently assigned our Deed of Trust “together with the Note” to BAC Home Loans.
2) We made sure to point out that all the Defendants were/are foreign corporations not licensed to do business in our state with no officers on record to receive service of process.
3) We then merely recounted our story, starting with the purchase of our house and subsequent refinance which brought us into contact with the Defendants. We described the multiple instances of their unscrupulous behavior.
4) We then explained how we came to be “in default.”
5) We then described our attempts at short sale and modification (which we attempted before we–as Neil says– “got it”) and the bad faith handling of those matters by the Defendants.
6) Then we pointed out how none of the Defendants had any interest in the Deed of Trust or the Note because we knew that the Note had been sold to Fannie Mae (confirmed via the Fannie Mae online “Loan Lookup Tool”).
7) We pointed out how no public assignments had been recorded of any sales of the Note/Deed of Trust. We pointed out that, according to the language of the Deed, the Note must be sold “together with the Deed of Trust,” which was not done. The complaint summarizes this state of affairs thusly:
“However, on information and belief, there has been a severance of ownership and possession of the Note and Deed of Trust, but the chain of transfer, sale or assignment of each is not made available in the public domain and is currently unknown to Plaintiff.”
9) We said the following:
“Plaintiffs demand an accounting of all credits and debits to the account and documentation to support each, including money received by Defendants from any and all sources.”
10) We then asked for the TRO.
Hope that helps. The Defendants sent a “Notice of Removal” to federal court. We just filed a motion to remand to state court. We’re now awaiting the decision on that motion.
bt
I say never underestimate your Adversaries brilliance or STUPIDITY.
Me? I think MERS will soldier ON, where they can, while they can, because they CAN. When 80%+ people are not fighting for at least their
“own day in court”, then MERS just gets to STEAMROLL right to the goal. Until an AG stops them or a class action stymies them; “you’re on your own”! OK I’ll stop {{{RANTING}}}
Could you expand more about what these two Supreme Court rulings mean to a few things; 1) it seems obvious MERS will not try to foreclose in its name 2) what about foreclosure suits where MERS was used to transfer the securtized loans and the suit is being brought by a Trustee for the MBO 3) What about foreclosures where MERS is a Defendant with the borrower on the loan in foreclosure.
zurenarrh- anyway to get a copy of your TRO, i just had mine dismissed and am trying again when the bank resets the sale date again. thanks
The Nevada court said:
“…there is no evidence that the named nominee is entitled to enforce the note or that MERS is the agent of the note’s holder…Indeed, the evidence is to the contrary, the note has been sold, and the named nominee no longer has any interest in the note.”
We made this very point in my successful TRO in the following language:
“Any assignment from the original beneficiary of the deed of trust is invalid as the original holder, Countrywide, no longer holds the Note. Further, the beneficiary was never a holder in due course and lacks any authority to assign any interest or to empower Recontrust to foreclose.”
The house of card is starting to crumble. The day of reckoning is approching.
marcus @ foreclosureProSe.com