How to Use MERS on Deed of Trust or Mortgage
Many Thanks to Sal for pointing out the statute from California.
It is time to use the presence of MERS on the originating loan paperwork as an OFFENSIVE TACTIC. Most states have some version of the statute below. It is simply common sense. A creditor is not a creditor unless they are owed something. A beneficiary is not a beneficiary unless they are a creditor. In the case of a mortgage note, a beneficiary is not a creditor unless it is the obligee on the note (i.e., the one to whom the note directs payment). There is no escaping this logic.
The point is that designating MERS as beneficiary or mortgagee is the same as designating nobody at all. The range of options for the Judge include several possibilities. But the one I think we should concentrate on is that an ambiguity has been raised on the face of every Deed of Trust or Mortgage Deed naming MERS as the beneficiary or mortgagee. That being the case, it MUST BE JUDICIALLY DETERMINED by a trier of fact (Judge or Jury). Without having a benficiary or mortgagee identified, there obviously can be no enforcement.
So the strategy here would be to force the would-be forecloser (pretender lender) to file a lawsuit establishing the note and mortgage (or deed of trust) by identifying the beneficiary or mortgagee. It would also enable you, in the face of a reluctant judge, to press for expedited discovery for information that the would-be foreclosing trustee or attorney should have had before they started. And this leads to a request for an evidentiary hearing — the kiss of death for pretender lenders unless you don’t know your rules fo evidence (a subject covered in depth in our courses currently in development).
California Mortgage and Deed of Trust Practice § 1.39 (3d ed Cal CEB 2008)
§ 1.39 (1) Must Be Obligee
The beneficiary must be an obligee of the secured obligation
(usually the payee of a note), because otherwise the deed of trust in
its favor is meaningless. Watkins v Bryant (1891) 91 C 492, 27 P 775;
Nagle v Macy (1858) 9 C 426. See §§ 1.8-1.19 on the need for an
obligation. The deed of trust is merely an incident of the obligation
and has no existence apart from it. Goodfellow v Goodfellow (1933) 219
C 548, 27 P2d 898; Adler v Sargent (1895) 109 C 42, 41
P 799; Turner v Gosden (1932) 121 CA 20, 8 P2d 505. The holder of the note, however, can enforce the deed of trust
whether or not named as beneficiary or mortgagee. CC § 2936; see § 1.23.
It sounds like you need to Quiet Title.
If no one can come forward with a proper claim and best evidence then you get Fee Simple title.
Question:
I have been fortunate enough to have survived Summary Judgment, Judge Denied SJ for Plaintiff’s failure to provide evidence it was the Holder of the Note.
Essentially, Countrywide tried to purport that MERS assigned both the Mortgage and the Note to Countrywide from MERS/America’s Wholesale Lender via an Assignment of Mortgage recorded at the ROD. I caught them in a fraudulent assignment.
It is my statement of Fact, before a Notary, that the Affidavit used to purport that Countrywide Home Loans Servicing LP, was the holder of the note and that I was in default, was a Fraud on the Court because the Affiant claimed to be an AVP for both the Assignor and Assignee, all the while the Note was not endorsed and payable to a different entity.
It is my Statement of Fact, that another entity is the Holder of the Note, this entity is a MBS Trust, and the Plaintiff is merely a Servicer for this trust, and they knowingly committed Fraud on the Court using their Attorneys signed Pleadings.
I have moved for Rule 11 Sanctions, and to Compel discovery, I will have a phone conference on Discovery Issues in the coming weeks.
My question is this: Should I file a Motion to Strike the Affidavit as Hearsay? I am not sure if it is necessary because this Complaint cannot continue as the Plaintiff does not have Standing as holder of the Note. Also, if I strike the Affidavit then I could possibly remove evidence of Fraud on the Court from a hearing on this Motion for Sanctions? I dont want that.
At this point I am gearing up for a Discovery conference. This is not an evidentiary hearing as I understand it, but a “conference” between parties. So I will use the Rules of Evidence that requires parties to at least describe the document that they claim is protected by Privilege, not to revel the info but to determine whether it falls under such relief. I want the PSA, the E-Note Chain of title, and everything else under the moon, and I’ll get it.
This must be the precursor to the Court compeling them to cooperate.
I think the Plaintiff would have withdrawn and refiled under the Trustee’s name had I not have moved for Sanctions.
What do you think Livinglies readers?
Upon futher investigation it seems that the Bank of New York Mellon is successor trustee for JP Morgan Chase as trustee for certificates holders of bear stearns asset backed securties,Inc. Asset backed certificates series2003-2,c/o EMC Mortgage corp it’s successors and assigns , all it’s rights, title interest in and to a certain mortgage, together with the note executed by……… to MERS acting solely as a nominee for RBMG. witnessed and signed by the famous scribble looking like a big U. By one and I believe I’ve seen that name on here before LIQUENDA ALLOTEY as VP !!!!! of MERS. He is also a forclosure specialist for fidility. HMMMM. Let’s see according to the Prospectus of the 2003-2 series we have some major fraud going on. Securities exchange commission needs to start a formal federal investigation. ALOT of BIG companies in volved in this. Can you Believe this anyone wanting to Bust all these people need to contact me. Criminal , fraud, Federal Agency I have it all. Any comments ????
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tony brown, on December 10th, 2009 at 9:57 am Said:
Please read. Mortage Notes are worthless (not my opinion) FDIC not protecting the public. Here goes long story, I have the note stamped fully paid and satisfied properly endorsed with the signature stamp of the VP of RBMG dated March 18,2002 along with a letter from RBMG stating that the loan is paid in full. RBMG was aquired by NETBANK, The FDIC shut down NETbank September 28,2007.ROD office will not satisfy the mortgage because they say they don’t make copies of the note, only the mortgage go to RBMG for satisfaction of lien. AS stated RBMG/Netbank are in fdic receivership.Now according to the FDIC as long as the loan was paid off prior to the receivership and that the failed corporation is in receivership they can satisfy the lien. proof of payment to include such things as a copy of the “PAID” note, cancelled check , HUd -1 or anything else that would indicate payment in full. I sent the paid note, a letter stating that the loan is paid in full, and a copy of the envelope stamped lien release on the outside. The FDIC refuses to issue the lien release saying the paid in full NOTE is not PROOF that the mortgage has been satisfied!!! The letter is not proof of payment. This is where it get’s even better the FDIC said they went to a public website that shows their has been an assignment from RBMG/MERS to the Bank of New York Mellon on March 19th 2009. RBMG IS DEFUNT has been since the take over by the FDIC in 2007. Mers said the MIN # has been deactivated since 2002 and that the servicer is The FDIC as receiver for NETBANK/ RMBG. I ask 3 supervisors at the FDIC for a formal investigation, I have reported to this to the inspector generals office, the office of omsbudman.I will not stop till I get answers. Media outlets, senators my state attorney general as there is some questionable activity surrounding this. SO forget produce the note cause I can and nobody cares. It is funny that these so-called mortgage companies can sell a non- existent NOTE to in vestors, Take your home by Forclosure on a Lost note / non existent note. But when I have the real thing original in ink paid in full it is not worth the paper it is written on, FDIC, Mers, Morgtage compaines are all crooked!!!
Please read. Mortage Notes are worthless (not my opinion) FDIC not protecting the public. Here goes long story, I have the note stamped fully paid and satisfied properly endorsed with the signature stamp of the VP of RBMG dated March 18,2002 along with a letter from RBMG stating that the loan is paid in full. RBMG was aquired by NETBANK, The FDIC shut down NETbank September 28,2007.ROD office will not satisfy the mortgage because they say they don’t make copies of the note, only the mortgage go to RBMG for satisfaction of lien. AS stated RBMG/Netbank are in fdic receivership.Now according to the FDIC as long as the loan was paid off prior to the receivership and that the failed corporation is in receivership they can satisfy the lien. proof of payment to include such things as a copy of the “PAID” note, cancelled check , HUd -1 or anything else that would indicate payment in full. I sent the paid note, a letter stating that the loan is paid in full, and a copy of the envelope stamped lien release on the outside. The FDIC refuses to issue the lien release saying the paid in full NOTE is not PROOF that the mortgage has been satisfied!!! The letter is not proof of payment. This is where it get’s even better the FDIC said they went to a public website that shows their has been an assignment from RBMG/MERS to the Bank of New York Mellon on March 19th 2009. RBMG IS DEFUNT has been since the take over by the FDIC in 2007. Mers said the MIN # has been deactivated since 2002 and that the servicer is The FDIC as receiver for NETBANK/ RMBG. I ask 3 supervisors at the FDIC for a formal investigation, I have reported to this to the inspector generals office, the office of omsbudman.I will not stop till I get answers. Media outlets, senators my state attorney general as there is some questionable activity surrounding this. SO forget produce the note cause I can and nobody cares. It is funny that these so-called mortgage companies can sell a non- existent NOTE to in vestors, Take your home by Forclosure on a Lost note / non existent note. But when I have the real thing original in ink paid in full it is not worth the paper it is written on, FDIC, Mers, Morgtage compaines are all crooked!!!
Thanks Mortgage Auditor for offering to post a few cases.
I am interested in Florida cases that you may have knowledge of.
Thanks again … TNL
If you guys need specific case summaries, I will be happy to look them up for you as long as the requests are reasonable and not too time consuming. You should always consult an attorney, so this will be merely information for your own research and education and not intended to substitute legal advice from a competent attorney.
It is tough enough going up against these crooks when you have competent representation, so acting pro se is extremely dangerous. 99.9999% of pro se litigants get crushed not because they don’t have a case, but because they don’t know how to play the game. You can’t learn this game overnight.
Read, read, read ……… every pleading, motion, opinion and case summary you can get your hands on and listen to audio recordings of court hearings so you can learn how to structure and articulate your arguments and how to interact with a judge.
You can purchase daily, weekly or monthly subscriptions to Lexis for case law searches. Although not cheap, it is worth every penny if you know how to use it.
You can also access it through a law library.
What about attacking MERS’s ability to “assign” a mortgage?
In my case, I googled the “AVP Carrie Hoover” and found that she was a 20 year Countrywide Home Loans employee, and called this into question. The Plaintiff was forced to admit she was a Countrywide Employee, however, they relied on MERS corporate resolution allowing signing authority.
How is this not a conflict of interest thus resulting in a Void assignment?!
Further, based on the unfolding case decisions, where MERS has no standing to foreclose because they have no pecuniary interest……..this theory must also be applied to test ALL ASSIGNMENTS from MERS “as nominee” to any other party.
Set the trap, assume the assignment is Fraud on the Court until the Plaitiff proves otherwise.
The Judge has requested the Clerk to set up a 20 min phone conference for the us to discuss “discovery matters that exist” ie the Plaintiff has refused to provide any document requested, failed to answer or respond to Interogatorries and Admissions, therefore I filed a Motion to Compel.
I plan on being calm, and succinct, and I want an accounting from MERS as well, especially the E-Note Chain of Title from MERS’ E-Registry. This will prove that the chain of title was long ago broken, and possibly show another entity currently holding the Note, in addition to Fannie Mae.
Does the naming of MERS as the nominee on a deed of trust create a cloud or legal issue if not used to enforce or foreclose?
They do not use MERS to foreclose here but the universal deeds are used thus making the issue of a cloud if it has no purpose except to hide the subsequent lenders.
I would think this would be an argument and at least require that MERS be listed as a defendant in the foreclosure action to clear title. But then again what do they care about clear title?
Martin,
I think you can access LexisOne and search for cases. The regular lexis is wicked expensive. I use a few different ways to find cases like findacase.com and findlaw.com which work for alot of the ones I have found so far.
Hi Guys,
Question: Where would you find this version of the Statute in your particular state?
Is there a version of Lexis Nexix available to the public? In other words, how can we research case decisions and cite them in our pleadings?
Can anyone state the Florida statute for this matter
Good job Sal !!
Steve
99Libra@gmail.com