Op-Ed Piece

I just received an email from a reader who is worried about the mess his daughter and son-in-law got themselves into with the purchase of their new home using a MERS-originated mortgage (MOM) … after writing a response to him, I decided to put my answer on this blog for the benefit of others who think that having a MERS mortgage is “no big deal”.  He even talked to a little old lady in John O’Brien’s office up in Salem, Massachusetts who acted like it was no big deal that MERS was involved.

We have become blinded by impulse buying and greed in our ambitions to have “wealth” (which is only a perception … as in “you can’t take it with you”).  So, here was my answer:

Whatever the little old lady thinks has been pre-programmed into her head by someone other than John O’Brien (or me).  Having MERS in your chain of title means (and you can tell the kids this):
1. Their mortgage loan has been securitized.  The reason the MERS® System is utilized is because the intent of the originating lender is to upload the note into the database for the purposes of trading it electronically throughout the banking sector (and Wall Street). 
2. Once the loan has been securitized, it changes “shape”.  The note may stay in its Article 3 UCC negotiable instrument form, while the security created with it becomes an Article 9 UCC security, which is traded allegedly into a REMIC trust; however, you wouldn’t know this (and neither would the kids) because no one ever told them WHO was actually funding the loan.  It will never be known unless they stop making their mortgage payments.
3. Once the loan is uploaded into the MERS® System to be electronically traded, word has it the original note is shredded.  Otherwise, according to the letter written to Judge Jennifer Bailey in Miami-Dade Florida by the Florida Mortgage Bankers Association, the implications are that holding onto all that paper would be cumbersome and expensive because of archival costs. We have to assume what shows up in court at trial or in discovery is an attempt at a forged copy.  This is why forensic document examiners (like the ones in the state crime lab) are an important part of vetting what’s claimed as the “original note”.
4. While the note is in the MERS® System, you have no idea who actually OWNS it.  The only way one finds out who “might” have a lien interest in the property is to go into default. 90 days after that happens, robosigners execute documents on behalf of MERS (who has no interest in the note … it’s in their own rules), dumping the loan back into the possession of the REMIC, years too late to comply with governing regulations of the REMIC trust.  Then, the alleged “holder” of the note commences foreclosure proceedings. 
5. MERS-originated loans likely cannot be granted a loan modification without generating a new note. The excuse that “the investors have not approved your loan mod” is bullshit, because the investors have no say in what transpires within the REMIC trust.  They hold NON-RECOURSE BONDS.  
6. Once your note is sold into securitization, side bets called Credit Default Swaps are placed against its performance. It’s almost as if the lender counts on the servicer to upset the apple cart by misapplying payments and other mishandling of funds (including improper use of escrow funds) to deliberately cause the borrower to go into default, because once the borrowers are out of the equation, they seem to lose track of everything until it’s “mission critical” … then it’s too late. 
7. Once the MERS-originated loan is paid off, parties who have no connection to the note and can verify its “paid in full” status in reality, robosign a release, which constitutes (for all intents and purposes) the unauthorized practice of law.  CoreLogic’s own attorneys have warned against this practice, but it continues anyway.  There is a case in Tampa that is about to go to a hearing before a judge to determine the validity of such a release of mortgage by parties “out of nowhere”.  This further causes chain of title issues in the land records because one has no idea WHO got paid at closing because MERS was used to “cover up” the chain of title WITHOUT an assignment to the releasing party!  
8. MERS has created mass confusion between itself and its parent, MERSCORP Holdings, Inc.  A Writ of Certiorari to the U.S. Supreme Court having to do with the very issues I’ve discussed here, on behalf of Daniel and Darla Robinson, is attached: 1. Petition for Writ (re USCA9 Case No. 15-55347).  I’ve attached it for you, so you can see it and read the mess MERS has caused.  If your kids refuse to read it, they are obviously (to me) financially irresponsible and will always be financially irresponsible because they took “the easy way out” in failing to examine the consequences of their actions BEFORE they took them. 
9. The chain of title to the property has been compromised because assignments are not recorded showing transfers of the note.  There is nothing sacred about chains of title being protected. County clerks, recorders and registers of deeds’ only job is to accept and record them when they do get filed.  Few even argue anymore, thinking it does no good.  That’s where they’re wrong.
10. MERS activities are monitored by 5 federal agencies under an April 13, 2011 Consent Order, which has never been cancelled or amended.  The reason the Order was initiated and agreed to is because of all of the foregoing issues involving Fannie Mae and Freddie Mac, referred to as Examined Members in the Order.  If MERS was doing such a great job, why is everybody suing them?  MERS also has a giant legal war defense fund; will outsource, outspend and out-procedure you at all costs, even going so far as to forum shop to vacate your quiet title action.  Read the Writ.  MERS to this day will not verify that it is still under this Consent Order.
That pretty much sums up where a lack of knowledge will get you.

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The case of Daniel and Darla Robinson has now been docketed with the United States Supreme Court, Docket #16-1127.

The 66-page Writ of Certiorari can be viewed here: 1. Petition for Writ (re USCA9 Case No. 15-55347)

The key question presented here is:

Whether Respondent, Mortgage Electronic Registration Systems, Inc., which is identified in most mortgages and deeds of trust as a “beneficiary” or “nominee” of the lender, possesses an interest in a borrower’s property sufficient to establish Article III standing.

To date, MERS nor its parent, MERSCORP, which is also “MERS” according to Rule 1 § 1 of its own 2009 Membership Rules, has confused courts all over the country and the author of this post is encouraging everyone to contact their attorney or institution of higher learning to facilitate support for this Writ in the form of an amicus brief in support of the nation’s highest court accepting this Writ for official hearing and review by the Court.  The deadline, according to Supreme Court rules, is April 17, 2017 to have all submissions in.

This case resulted in a very narrow ruling, albeit unpublished, by the 9th U.S. Circuit Court of Appeals, consisting of 3-1/2 pages.  Everyone needs to get behind this case because this is the only way we are going to get a real determination of what MERS is or isn’t, or claims it is or isn’t. Further, in reading this brief and in looking at other similar cases, not once has MERS ever proved it suffered an actual damage or injury to justify Article III standing (see Spokeo v. Robins, an earlier Supreme Court decision).

On behalf of all homeowners whose chains of title has been affected by MERS and its parent, you owe it to yourselves to circulate this Writ and get action on it.  Forward it to your Congressman, Senator, County Clerk, anyone you think will be effective in convincing the Justices to accept this case.  It is anticipated that the banking industry will pummel the Supreme Court with amicus briefs, as will MERS in its answers, which still prove nothing more than what has been made a conflict between the federal circuits and the state supreme courts across the country.  It’s about time this matter was put to rest.



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Why do the majority of distressed homeowners think they can act as their own counsel, especially when it comes to filing an appeal in their case?

Is this part of Plan B?  In other words, if Plan A doesn’t work … and you lose in state court, representing yourself in any capacity, should you continue this folly by use of the same pattern of thinking in an appeal?  Resoundingly: NO!

I can appreciate the fact that homeowners who got dissed in some way, shape or form by a lender are attempting to do what they believe is right, but there comes a point in time when Plan B ruins it for everybody else.  In both of the instances you’re about to read here … everyone loses because these opinions are published and can be referenced by the courts and opposing counsel in other similarly-situated cases.  That’s why homeowners who choose to litigate their own cases have two choices:

  1. Either be pissed at themselves because they weren’t in their right minds when they chose to litigate the case themselves; or
  2. Be pissed at themselves because they did not comprehend that the definition of “insanity” is repeating the same uneducated nonsense in a court case that got you into trouble in the appeals court, expecting different results.

Let’s face it folks, pro se/pro per litigants are not attorneys.  They are pissed off homeowners.  They want their pound of flesh because they got their ass beat in the lower courts.  Rather than coming up with Plan B, meaning, restructure your financial position and live to fight another day, they turn around and appeal their case, without legal knowledge or foundation and then expecting that the higher court will show them mercy against the “big, bad bank”.  Sadly, what you’re going to read here is procedural error, an error that could have been prevented by retaining decent counsel.

The mindset however is that pro se/pro per litigants do not trust attorneys or they think they can take on the burdensome task of litigating the matter themselves, regardless of the consequences to themselves AND EVERYONE ELSE!  When a pro se/pro per litigant fails in court, it sets bad case law for the rest of us!

Don’t feel bad for these people.  They should have known they were getting in over their head by doing this.

While I am not in favor of what these banks have done to Americans nationally, I am pissed at the lack of common sense in thinking that the average, pissed off homeowner can fight a mega-bank that spends millions, if not billions of dollars a year in litigation costs against whoever comes against it.  Bank of America, N.A. reportedly spends $2-billion a year in retaining counsel to fight its battles.  It is nothing for them to squash you like a bug, especially with their research teams vetting your educational ability prior to “launching a full spread” against you, knowing you don’t have “countermeasures” (to use specific submariner’s terms).

It is rare … and there are a few singular cases … where a pro se/pro per litigant has become the “David who slew Goliath”. This is the exception rather than the rule.  One person who I know personally, who is an absolutely brilliant researcher, won her case in bankruptcy court in Illinois. The other, who won against MERS (who also possesses a multimillion dollar legal war chest), was in Tennessee, namely Carlton J. Ditto.

When you read the following cases, please come to the realization that 99% of average American homeowners who got suckered into these securitized mortgages: (a.) do not have the legal acumen to fight their cases themselves; and (b.) do not have … and never did have … the financial resources set aside, vis a vis a legal fund, to take up the fight on behalf of the rest of us. No one expected these results to occur, yet they did.  Lessons learned at the expense of the legal system.

Ivanoff v Bank of America, Cal. 2nd App Dist No B271035 (Mar 13, 2017)

McCullough v CitiMortgage, Inc. Sup Ct Ind. No 71S03-1605-MF-272 (Mar 14, 2017)


From time to time, I hear about pro se/pro per litigants attempting to take matters into their own hands by going “outside of the system’s own parameters” and using their own quasi-legal devices to retaliate or effectuate a legal outcome.  A majority of these battles end miserably.

I have had numerous homeowners contact me and inform me that they are utilizing what are known as “administrative processes” or “UCC-1 Statements”, to thwart the bank’s attempt at foreclosing on their homes.  As you will read in the following decision … use of these so-called “self-defeating” methods will land you in prison:

US v Jordan, 5th App Cir No 15-20454 (Mar 14, 2017)

It’s not giving legal advice when I don’t have a good feeling about what these folks are doing.  It’s just another way to protest what many Americans believe is an unjust legal system.  I get that.  However, the system has its own set of tools for dealing with these issues.  When these issues become insurmountable … and you mind yourself out of funds … no longer able to sustain … it is time to put your thinking cap on and realize that what you do in the future may cause unintended harm to others … and to amass what financial resources you may have at your disposal and find other digs, even if you have to move to another market or another state entirely, to start over.  This is what the settlers did when they came to America to escape persecution from the King.  They knew it was futile to fight, so they moved and started over.  History does repeat itself in very finite ways.

As Sean Connery stated in the movie, The Hunt For Red October, “… when Cortez reached the new world, he burned his ships, so his men became highly motivated.”

Burning bridges doesn’t mean giving up.  It means surviving.  We are Americans.  That’s what we do.  No matter what.

Rethink Plan B!


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Clouded Titles Author Dave Krieger Live On-Air Tonight!


Happy St. Patrick’s Day! 

Join Clouded Titles author Dave Krieger with retired attorney (and WKDW-FM station manger R. J. Malloy) on WKDW-FM, 97.5, North Port, Florida.  You can hear them live, on this special St. Patrick’s Day edition of City Spotlight, streaming over the internet, at kdwradio.com!   Simply click LISTEN LIVE to join in at 6:00 p.m. Eastern Time.  Hear the latest news and information about debt collection, foreclosures, legal issues and related information.  Send your questions and comments on the program to info@kdwradio.com.

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