mers in court cases

26 Jan

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. SAUNDERS 2010 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)[1] 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.)
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).

One Response to “mers in court cases”

  1. Kevin Quinn July 12, 2011 at 10:59 pm #

    Dear Tim,

    I don’t know how to get in touch with you, but I would like you to have this document, because I believe it can help people win their credit card cases in court.


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