Sixth Circuit issues authorizes MERS role as foreclosing mortgagee in Michigan – One more State ignoring the Supreme Court Law of the land in Carptenter v. Longan…

11 Jul

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8 Responses to “Sixth Circuit issues authorizes MERS role as foreclosing mortgagee in Michigan – One more State ignoring the Supreme Court Law of the land in Carptenter v. Longan…”

  1. Deadly Clear July 11, 2012 at 8:53 am #

    We have to start asking “why”?! Is it just very stupid judges or is there a bigger picture? Every brief has to be written as if it were going up on appeal. I find that lower court judges that don’t make it up the ladder is probably for a good reason.

  2. johngault July 11, 2012 at 9:06 am #

    How does the collateral instrument following the note preclude MERS from being the
    beneficiary for a new owner of the note? You have to answer this question, right after you
    answer this one: is MERS ever a beneficiary? If not, why not? If MERS IS the original
    beneficiary, what stops MERS from remaining the beneficiary when the note is transferred to a new owner? Why can’t MERS be the ben for a new owner? Collateral instruments are being assigned by MERS members to themselves when they only hold (allegedly) the notes but have no beneficial interest in them: they have no right to the assgts of the coll instrument.

    • ddean1257 July 21, 2012 at 11:28 am #

      1. By MERS own admission in deposition (sorry I don’t have the case # but you can find it on scribd) MERS NEVER owns posesses takes holds (insert the word of your choice) a note. They record the transfer of the instrument that secures the note (the security instrument) only. The title follows the note-not the other way around.
      Since they can not take ownership possession of the note, recording of title with MERS bifucates the note and title…That is the heart of the chain of title issues in a nutshell. Hope this helps. Then there are related issues-
      Suggest you read up on UCC3, 4 and 9. The promissory note is at the heart of the issue and becomes a draft at “Pay to the order of” so it can be securitized…In doing so, it is no longer a note…(a draft can not be the “owed debt” of the security instrument-it has to be “paid” to be converted-otherwise you create a double-dip.)
      Without a debt owing on a note, the security instrument associated with the mortgage note is unenforceable-you can not collect on something no longer owed.
      MERS can not transfer something (both the note and the security instrument) when it never owns the note (evidence of the debt).

  3. johngault July 11, 2012 at 9:14 am #

    If a loan has been securitized, is the note owner, the one and only party with a beneficial interest in the debt obligation, a MERS’ member? If not, how can MERS purport to act for the new note owner? Under what authority is “MERS” assigning collateral instruments in Any scenario? We all know it is factually the members doing the assignments to themselves, but even if MERS literally executed an assignment, where is the authority? If they need authority, and I say they do, they cannot establish it, certainly not without introduction of other material as that authority is not found in the dot.

  4. Dan Marsh July 15, 2012 at 5:56 am #

    The 6th Circuit not only ignored U.S. Supreme Court precedent, but also Michigan Supreme Court precedent holding the same as Longran. The case the 6th Circuit is relying on is a Michigan Supreme Court case cased called Residential Funding Co, LLC v. Gerald Saurman, Mich. S. Ct. Dockets 143178 and 143179 (November 16, 2011) (Saurman). That state court court decision did nothing to change over 100 years of precedent as the Federal 6th Circuit seeks to do. It is hard to imagine that over 100 years of legal precedent is overturned in a 3 page ORDER from the Michigan Supreme Court in Saurman specifically overturning a lower court case (without a hearing) as the 6th Circuit relies and implies. Both state and federal law were ignored to get the result in the 6th Circuit court decision.

    • ddean1257 July 21, 2012 at 11:42 am #

      Some Judges still are unfamiliar with UCC and the state adopted versions of the UCC in the state where they preside. They also seem to believe the “Lender” loaned money, when really they only extended credit- They seem unaware that someone else, undisclosed to the “borrower”, funded the transaction. Old beliefs are hard to change.
      And they seem ignorant of the many relevant laws surrounding “banking-lending-insuring-securitizing) that have changed as recently as 1992 & 1998. (Research the Glass-Stegall Act which had been in place for almost a century to prevent this type of fraud and deception) Curious that it is impossible to see who voted on the ammendments which repealled the safeguards afforded by this Act-opening the floodgates of fraud.

  5. johngault July 22, 2012 at 12:53 pm #

    ddean said:

    “Since they can not take ownership possession of the note, recording of title with MERS bifucates the note and title…That is the heart of the chain of title issues in a nutshell.”
    jg: MERS doesn’t take possession of anything, this we know. Still, one step at a time. Does the law prohibit a nominee, for any reason, from being named the ben for another?
    It probably doesn’t. If that is true, than maybe MERS can be the nom of the orign
    noteowner, even tho and recognizing the nom has no real interest. IF the nominee has
    no interest as nominee, then all it may factually convey is what it has: nominal status. The
    assignments must have been done and to act on them, must be recorded.

  6. johngault July 22, 2012 at 1:30 pm #

    It’s very diff for me to type at this site! The truth is,
    what MERS can and cannot allegedly do is found in two separate
    documents – the dot and the mem agreement, with the borrower having
    no indication or info regarding the latter, and which second
    document is never evidenced. Therefore, any alleged authority is not
    “apparent”, which as used here is a legal determination.
    Neither document authorizes MERS to execute an
    assignment. Prior to MERS’ Consent Order, which resulted in no
    more f/c’s in MERS name, apparently such need for assgts was not
    contemplated by MERS and its members because the plan was to have
    “MERS” foreclose. At any rate, all MERS could do, anyway, is
    alienate its nominal status. Not all states provide that assgts
    must be recorded to be effective. Unrecorded assgts are effective
    as to the parties thereto (and only the parties thereto). That
    doesn’t mean they needn’t have been done, even if a MERS retained
    nominal status in public record or otherwise. In the absence of
    recordation, however, there can be and is no evidence of anyone’s
    authority, any right to act. Anyone’s authority and right to act
    is derivative of the authority and right of the guy before him.

    Certain dispositive questions must be asked and answered imo: 1) from
    whence does MERS derive its authority to execute an assignment (even
    if MERS did such a thing, which it doesn’t)? 2) Are the sec’n investors,
    the parties with the alleged beneficial interest in these loans, MERS’
    members? (They’re not). 3) Of what, if any, benefit is it that the
    sec’n trustee might be a MERS’ member? Is the sec’n trustee’s alleged
    MERS’ membership enough to overcome MERS’ own mandate for assgts to
    non-members? 4) Is MERS the nominee, can MERS be, the nominee ben for
    non-MERS’ members? It’s rules provide otherwise. The only other
    possible reliance is the “its successors and or assigns” found in the
    dot, but this conflicts with MERS’ membership rules, which state that
    an assgt must be executed and recorded (and the loan removed from the
    MERS’ computer system) when the “beneficial interest in a note”
    (it may use the word loan, I forget this minute) is transferred to a
    non-MERS’ member.
    5) Last but not least, if MERS were in fact authorized somewhere to
    execute an assignment v. alienation of mere nominal status, which
    it isn’t, are the parties who are just now executing these assgts
    factually empowered to do so? Is an employee of the assignee, or
    even if employee of the assignor, wearing a MERS’ officer hat,
    courtesy of a 20.00 alleged corporate resolution from Wm Hultman
    a party who may bind MERS? We saw what one court,squarely confronted
    with the issue, thought in Koontz, Indiana. The court threw out the
    assgt with rather harsh words for the actors. This doesn’t mean all
    courts would. But one won’t ever get a ruling if one doesn’t make
    the querry.

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