(BREAKING NEWS – OP-ED) —
The author of this post is not an attorney and therefore cannot render legal advice. However, he believes that everyone reading this post can clearly understand the intentions of the 5th U.S. Circuit Court of Appeals. It doesn’t take an Einstein to figure out the blatant meaning behind the Circuit Court’s thinking here. As an Op-Ed piece, I would think the Burke’s counsel needed to approach the assignment of deed of trust to Deutsche Bank (who I refer to hereinafter … and not lovingly … as Douche Bank) National Trust Company, as Trustee for a REMIC that was empty in the first place! The courts still do not “get” this yet; thus, we have a ruling that is holding the lower court’s feet to the fire (the lower court may have gotten it right). Here’s the case for your review: DBNTC v Burke, 5th App Cir No 18-20026 (Sep 5, 2018)
NO ONE CHALLENGED FULLY CHALLENGED THE DOCUMENT!
For a number of posts since the McGinnis case was brought up, I’ve been talking about the assignments. I am not totally sure that the Burke’s lawyer was up to speed on any of what I’ve been talking about, but if we were to look up the assignment in question, which the lower judge took issue with, we could pick it apart, piece by piece … and figure out how and why Douche Bank went to federal court to get the result it did, when home equity lines of credit in Texas start out as Rule 736 motions (the cheapest way for the lender’s servicer to steal the property in any Texas state court). Once you’re done consuming the contents of the 6-page ruling, you can decide where the “manifest injustice” really is!
You see, the Burke’s probably had the funds to fight this the right way. How and why they didn’t plead or properly attack the assignment is beyond me. Why they didn’t attack MERS’s “beneficial” interest is beyond me too, because Restatement of Mortgages (Third) § 5.4 clearly does NOT fit Mortgage Electronic Registration Systems, Inc.
However, if you look at the bad case law set by the suit against MERSCORP in the Southern District of Texas, the Burke’s arguments fall short of a “win” (which is not what was desired here). Instead, from all appearances, the lower court (Judge William Smith, U.S. District Court, Houston) justice got into a pissing contest with the 5th Circuit over the validity of the assignment. In order to fully comprehend what’s happening there, you’d have to pull the law of the case on the subject (which I did) … see it below:
If you notice the numbers on the case, it’s been going on since 2011. I would suspect it’s been going on since the “suspect” assignment was recorded in Harris County, Texas and Douche Bank and Ocwen (who was the servicer in that case) “manufactured” the document with the intent to steal the property. The problem is, the Burke’s put an Affidant forward to the Court from a “Chief Fraud Examiner” (Charles K. Lamm) … hmmm … who died and made him chief? Mr. Lamm’s affidavit was excluded because he was NOT allowed to be an “expert witness” at trial. Another presumptive mistake by the Burkes and their counsel. Again, as I spoke of earlier in the articles GUTTING THE UNDERBELLY OF THE BEAST, the first mistake was allowing this case to proceed in federal court, where the homeowner and his attorney have minimal control over the foreclosure, especially where any form of “MERS” is brought up. You also have to look at “the times” (the period in our history of litigating against any MERS entity) … that things have come about in a different way, which has resulted in virtual conflict among the States of the Union as to whether any MERS entity has any right to claim itself as anything, when Restatement of Agency (Third) was clearly brought into the equation. I bring you the screen shot from the case to discuss the importance of understanding WHY I’m talking about what constitutes an “Expert Witness” and proper discovery to bring about the desired results within “the system of things”, even if it comes to an unfolding scenario in federal court (an obvious ongoing fight for what appears to be over 4 years):
NO EVIDENCE … NO RULING IN YOUR FAVOR!
If you’ll notice in the foregoing screen shot WHAT the Court said is that there is NO SUPPORT FOR THE EVIDENCE SUBMITTED! Further, the Court pointed out that NONE of Mr. Lamm’s documents were authenticated. That, my friends, is sloppy lawyering. This was typical for what was going on in the courts around this country (and probably still does occur) at the time because people still haven’t gotten past the emotional state of running into court and screaming “FRAUD!”, expecting to get results in their favor, with no discovery, no depositions and no live testimony from a proper expert witness. What “personal knowledge” could be gleaned from Mr. Lamm, as all he did was examine documents he had nothing to do with creating. Where were the depositions here? I don’t see any mention of them anywhere within the 4-page Order of the lower court in 2014, do you? What the hell were these litigants thinking? The same thing many homeowners think when they see what they believe is a “suspect” document. They hire some self-proclaimed “chieftain” to analyze their document and tell them what they want to hear, with no evidentiary support to back it up … and definitely … no personal knowledge of anything. This pattern has followed many a homeowner through unsuccessful foreclosure processes all over the U.S. I guess people have not awakened to the principles of the Rules of Evidence yet.
IN SOME STATES, GOING AFTER ANY FORM OF MERS IS A BIG WASTE OF TIME AND MONEY!
Unless money grows on trees and you have such a tree growing in your yard, or you live in Tennessee (where the Ditto decision gutted MERS like a chicken), whatever State you happen to be in (in this case, Houston, Texas), the courts are split on what MERS is … and what MERS isn’t. It isn’t just in the federal circuits … it’s in the state courts too. A lot depends on what legislation was promulgated (and by whom) to get “nominees” into the mix within the county land records, which in turn decimated the county’s earnings directly because of HOW the MERS® System works.
The only way I see this coming to a finite end is to “gut the underbelly of the beast”, where the beast least expects it. This case serves as an underlying reason why “the system of things” has to work the way it was designed to work, NOT the way you think it should.
This is done by going after the attorneys for the banks and their servicers and holding them liable for felony perjury on the court (which BTW can be exerted in either state or federal; however, there is no “money flow” from the federal side, only from the counties that are heavily insured or self-insured) by directly attacking the document(s) involved, which means you have to focus on those creating (manufacturing) them. If you want to win, there is no getting around this. If you want to take down MERS, you have to take them down in principle by going after the “users” of the MERS® System and NOT MERS DIRECTLY! You see, the “users” are all trained liars!
For the rest of the story, see the upcoming post … GUTTING THE UNDERBELLY OF THE BEAST – PART 7. In that segment, you can learn and differentiate when judges “do the right thing” versus when they don’t. When they don’t do the right thing … is when the system of things kicks in!