Tag Archives: Al West

FLORIDA HOMEOWNERS SHOULD STAY OUT OF BK 7 COURTS IF THEY WANT TO FIGHT FORECLOSURES!

The author of this post is not giving legal advice, just reporting what’s out there.  You should consult a competent foreclosure defense attorney regarding such matters, as the contents in this post appear to reflect the court’s intolerance for homeowners who file bankruptcy to stop a foreclosure. 

OP-ED — 

Folks who are in trouble with their mortgages in Florida really need to strategize before taking the plunge into the abyss known as the Florida legal system, where state judges clearly have “agendas”, the Florida Legislature has “agendas” and the federal courts have “agendas” … all aimed at taking of property when you can’t make the payments on it.  It’s not often that the author of this post steers away from chain of title issues, but there appears to be widespread ignorance (or in the alternative, intolerance) on the part of the Sunshine State’s legal system, which makes things “not so shiny” anymore, given the recent spate of legislation and court actions.

STATE JUDGES

All one needs to do is examine court dockets to see how fast, over time, that Florida circuit judges have blindly assumed that the financial institutions coming before them actually own the promissory note they’re trying to enforce.  It would seem that judges simply rely on the blatant attack on the property owner as just because otherwise, why would this particular bank show up in court?   Because they can!  And they do!  And judges give them so much leeway that Florida homeowners are stymied for options.  This is why the State of Florida has so many zombie homes (despite what the politicians, economists and the media would have you believe) and shadow inventory that sits empty because of title issues.  In very few cases I’ve examined have I seen evidence within a transcript that allowed for a forensic examination of the note, to make sure it’s “original”, like the bank’s attorney says it is.  To show you that the inequity between state court systems is similar in nature, I’m consulting a case in New Jersey where the bank’s law firm sent a “cover lawyer” into court with what appeared to be a “faxed copy” of the note, claiming it to be the “original”.  I think most judges, even in light of the foreclosure defense attorney’s objections, could tell the difference, but nope … this judge said that the word of the law firm and the faxed copy of what it self-authenticated is good enough!  Can you believe that shit?

Another part of the equation is the existence of foreclosure defense lawyers who have seen fit to turn the foreclosure debacle into a cash cow by using delay tactics to keep property owners in their homes, despite the probable outcome that only about 1 in 25 cases brought into court makes it past the 810-day mark in a Florida foreclosure cycle.  Knowing that the odds are never “in their favor” (attributing the quotation to The Hunger Games), frustrated mortgagors then contemplate using bankruptcy court to dodge the “sale bullet”. However, things in Florida are about to change.

THE FLORIDA LEGISLATURE

Effective July 1, 2017, Florida homeowners who run to the bankruptcy court and get their promissory note discharged are going to find themselves without other options to fight the foreclosure.  See House Bill 471 here if you don’t believe me: fl-hb-471  It’s only two pages long and I’m sure you can read (if you’re reading this)!

Simply put, any documentation that is filed in Bankruptcy Court which would indicate surrender of the property (commonly seen in Chapter 7 cases) makes it legally okay for the bank’s attorney to submit that document that was filed in the Bankruptcy Court under penalty of perjury to a Florida circuit judge to get a Final Judgment of Foreclosure.  I see this as a definite negative if you’re trying to fight a foreclosure.  But then again, most homeowners are like electricity.  They want to take the path of least resistance; and declaring bankruptcy is certainly a hell of a lot cheaper than fighting a foreclosure through Florida’s appellate system.

It appears that folks don’t understand the difference between an in rem and an in personam action.  Enforcement of a security instrument, which in Florida’s case is a mortgage, can only happen when the party claiming to have an interest in the property can prove ownership.  An attack on the property through the recorded security instrument is an in rem action (like quiet title actions).  This is why I wrote the book The Quiet Title War Manual (with the professional help of California attorney Al West).  The book explains the difference between the note and the mortgage.  Folks who don’t get it should get this book and read it, because when Al West and I taught quiet title workshops, we hammered these basic principles into the heads of the attendees.  In personam actions are actions involving debt, which in this case is the promissory note, NOT the mortgage!   How convenient it is that the Florida legislature has come up with this House Bill in the wake of the recent court conflicts within the federal system!

THE FLORIDA FEDERAL COURTS

Let’s look at the case of In re Hookerin-re-hooker   Once you get past the first three paragraphs, you’ll understand why the Florida legislature did what it did to help the banks fight continuous counterattacks in state court.  Again, how convenient, to avoid further confusion in the courts.  Let’s just legislate this away, shall we?

Now we come to the slam dunk that affects the way the 11th Circuit Court of Appeals (which covers Florida), has ruled that Chapter 7 debtors who file a bankruptcy action and put forth a statement of intention to surrender the real property cannot later contest a foreclosure in the state court. in-re-failla   If you read the first paragraph of this PUBLISHED OPINION, and then read the background on the case, it appears that the homeowners wanted to “have their cake and eat it too”.  The Failla case simply states: “Debtors who surrender property must get out of the creditor’s way.”   The Florida Legislature (I believe) made sure that a bill was passed that shut off the trough at the source of the feed (so to speak).

No more hogs at the trough.  There have been so many different points of view, it’s understandable that the Florida legislature would pass a bill that state courts could point a finger at and say, “SEE?”   So for those of you thinking that running into bankruptcy court (in any state for that matter) and declaring your intent to surrender the property (God forbid, why would you do that?) under penalty of perjury is so confusing to some when their state court cases get shut down.

ANOTHER WHAMMY! 

It has also become relatively apparent that any homeowner that has placed themselves in the foregoing position and continue to litigate their foreclosure in the state courts of Florida are likely to get sanctioned!   Vexatious litigants are likely to wind up in jail on contempt charges!  I say this because of what happened to foreclosure defense attorney Stuart Golant, 70,  in the Palm Beach County courtroom of Senior Judge Howard Harrison for simply making a motion!

Florida homeowners have had the deck stacked against them by the courts and the legislature in favor of the banks when it comes to promissory note enforcement.  Once a mortgage has been recorded in the land records where the subject property is situated, all it takes is a missed payment and the door to “foreclosure hell” opens to swallow the homeowners whole.   I can’t help but wonder what kind of counseling homeowners have received, given the phone calls and emails I get regarding strategizing an in personam case against them.

ONE MORE TIME …

In a judicial foreclosure state like Florida, a lender comes to court and waves the promissory note around and claims it has the right to enforce the terms of the note!  It should be required to prove that the note is genuine, forensically.  Have the actual paper tested.  Have the ink tested.  Check for pixelation by blowing the note up on a computer screen to examine evidence the note was photoshopped.  Object to the note being entered as the original.  I believe a majority of securitized notes are copies of what was downloaded into the MERS® System and later shredded, as I’ve covered in previous posts.

Once the lender gets the note in front of the court and gets it admitted into evidence and gets the court to agree that U.C.C. Article 3 (Negotiable Instruments) exists and that the alleged lender has the right to enforce the note, THEN the Lender gets to enforce the Security Instrument, the in rem part of the equation.  The security instrument (Mortgage) is then “ripe for the picking”.  Believe it or not, most homeowners think that the lender is foreclosing on the mortgage.  That couldn’t be further from the truth!  The Lender is foreclosing on the Note.  Proving it has the right to enforce the Note means the Lender gets the right to enforce the Security Instrument, not until!

Bankruptcy Courts are designed to handle in personam scenarios.  In personam relates to debt.  Promissory notes are evidence of debt!   Recorded mortgages are evidence of security interests, not debt!   If you’re going to use the bankruptcy court to alleviate your personal obligation to the note, and liquidate it in a Chapter 7 bankruptcy proceeding, be prepared to move out of your home!

Thinking twice about running into Chapter 7 bankruptcy court to stop the sale?   The “system” is ready for you!   (Hint: This is why we have Chapters 11 and 13!)  No matter, if you live in any state where you think the “deck is stacked” against you, plan your “end game” BEFORE you go into default, not after!

And this is why I don’t talk about in personam issues much.  Homeowners really should get a financial education before they sit down at the closing table.

Tune into kdwradio.com every Friday night at 6:00 p.m. EST for my radio show, City Spotlight: Special Edition!   Order any of the author’s books by visiting Clouded Titles!

For those of you waiting for the new FDCPA book, it’s almost ready!   Pre-order your copy today!  (FDCPA actions are for dealing with debt collectors!)

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Filed under Financial Education, Op-Ed Piece

NINTH CIRCUIT APPEALS COURT CANCELS MERSCORP V. ROBINSON ORAL ARGUMENTS! UPDATE!

BREAKING NEWS — The U.S. Ninth Circuit Court of Appeals has just sent notice to all of the attorneys of its decision to cancel the hearings on December 8, 2016 in the matter of MERSCORP Holdings, Inc. et al v. Dan and Darla Robinson.  Here is the notice that attorney Al West just received from the Court:

***NOTE TO PUBLIC ACCESS USERS***

Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.

United States Court of Appeals for the Ninth CircuitNotice of Docket Activity

The following transaction was entered on 11/21/2016 at 1:05:28 PM PST and filed on 11/21/2016

Case Name: MERS, et al v. Daniel Robinson, et al
Case Number:   15-55347
Document(s): Document(s)

 

Docket Text:
Filed clerk order (Deputy Clerk: WL): The Court is of the opinion that the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. Therefore, this matter is ordered submitted without oral argument on December 8, 2016, at Pasadena, California. Fed. R. App. P. 34(a)(2)(C). [10204835] (WL)

Notice will be electronically mailed to:

Mr. John Owen Campbell, Attorney
Honorable Philip S. Gutierrez, District Judge
Mr. John Owen Murrin, III
JoAnn T. Sandifer
Ms. Mary Kate Sullivan
USDC, Los Angeles
Al West

 

OP-ED — Now for the speculation as to why the 9th Circuit cancelled the hearings.  Here is some of the scuttlebutt floating around:

  1. “Someone got to the Chief Judge.”
  2. The Court was worried that the room would be packed full of cheering homeowners in favor of the Robinson’s and that this powder keg would bring crowd control issues the Court didn’t want to have to deal with.
  3. The political tide is shifting in favor of the banks with the election of the Donald.
  4. Ipsa Res Loquiteur.
  5. Certainly NOT because I was going to be there.
  6. MERS and MERSCORP own the Courts too!  (example: See Minnesota, “MERS Statute”)
  7. No matter what the 9th Circuit rules, they already know this case is going up to the United States Supreme Court.
  8. Rioting in the streets; protests in front of the 9th Circuit.
  9. Appellate Judges don’t want to hear the truth either.
  10. MERS attorneys were afraid that Al West was going to blow them out of the water … someone made a phone call.

Whatever the case, you can bet that both sides are going to wait the 4-6 months for the ruling.  Prep will start now in anticipation for taking whatever ruling the 9th Circuit issues up to the U.S. Supreme Court.

Calling all Superlawyers! 

Now’s your chance to shine!   Please email me at cloudedtitles@gmail.com if you’re interested in putting forth an amicus brief that further eviscerates the MERS business model!   If you have any dirt on the former AG (Holder), now’s the time to spill the beans on his allegiance to MERSCORP (his client at Covington & Burling) and the banks!  There are a lot of pissed off homeowners that aren’t going away any time soon … this case is being watched by the judiciary all across America!

FIRST UPDATE:

Here are comments from Fred Isaacs, an attorney with Jurisconsult, LLC in Lake Oswego, Oregon on the 9th Circuit’s decision NOT to hold oral arguments in the Robinson case: 

Speaking historically, it’s usually been a bad sign for an appellant to have a case submitted on the briefs — but as we both know, appellants always have an uphill battle in the appellate courts.  For the enumerated reasons set out below, this old historical rule may no longer mean much, if anything.  Moreover, it may be worth reminding the Robinsons what has been said about their appeal from the get-go.  You and I have consistently made clear to them that they have a viable appeal, but that simply means it has a fair chance of success; i.e., it’s not meritless, much less frivolous, but it does not mean it’s a slam-dunk win.  As you and I both know, only in 10-weights do the appellants have an edge over appellees; in all other appeals the appellees have the edge, and at best the Robinsons’ appeal is a 5-weight.  We have also been honest about telling them their chances of winning — at best one-in-three.  It might be worth reminding them that the odds were always against them, and nothing has changed on that front, oral argument or not.

Nevertheless, there are a few signs that might point to a little cautious optimism.

First, the appellate courts are hearing oral arguments less often than they did even five years ago.  This is largely a reflection of the fact that the number of appeals filed annually has more than tripled since the number of judges sitting on the Ninth Circuit was last increased — during the Carter administration.  In other words, the same number of judges are processing three times as many appeals: so, fewer cases get oral argument, and those that are argued get less time.  I myself am repeatedly seeing most 3-weights, and many 5-weights, being submitted on the briefs, something that just wasn’t done when I was with the Court.

Second, because more and more MERS cases are wending their ways through the federal courts, it is possible — indeed, likely — that the judges are aware of the factual and legal problems posed by these cases and may be looking to stem the tide by making a few definitive (?) rulings.  Oral argument isn’t necessary to do that.

Third, these MERS cases — despite their sometimes very ugly facts — really do present the courts with nearly pure questions of law.  Such appeals don’t need oral argument unless the Court is being asked to take a major step, e.g., overturn a long-standing law or declare something unconstitutional.  That isn’t our situation.

Fourth, most judges will admit — in private, anyway — that oral argument rarely changes their minds.

So, while I’m definitely not happy that this case is being submitted on the briefs, and I don’t view it as a good sign for us as the appellants, I’m not as pessimistic about our chances as I’d have been a few years ago.

Now that I read this back to myself, it may sound slightly dark, but I’d prefer to think it “realistic.”  I’d still put the odds at somewhere between 2:1 and 3:1 in favor of the appellees, but the fact that the case isn’t being argued doesn’t tip the scales any farther in their favor.

SECOND UPDATE! 

I made the previous comment that the judiciary across America was watching this case?  It appears (from one judge, who I am NOT going to name here because MERS reads these posts) who has researched PACER, the federal document custody and retrieval system), that something is “highly suspicious” with the cancellation of these hearings because upon this judge’s review of PACER, no actual “panel” was disclosed or appointed to hear the oral arguments that was cancelled in the first place!   My sources are checking further into this matter because for something like this to occur, because the Clerk of the 9th Circuit Court of Appeals released the Order canceling the hearings.  The chief judge is supposed to “sign off” on these documents, yet there is no signature of anyone in virtual authority doing this.  There is no indication as to who is actually reviewing these documents and there certainly isn’t any “person” of authority that has come forward to (other than the stated reason given) reveal why the cancellation came three weeks out and not just days prior to the oral arguments.

My sources also tell me that this case is a real “hot potato” for the 9th Circuit.  Most of the states (as I’ve previously cited) are split on what MERS can and cannot do.  This I know for sure (and it would surely follow that IF I were to author an amicus brief to the U. S. Supreme Court, based on my research) … there is NOTHING (as to specific language) in any deed of trust or mortgage that allows MERS to:

Assign a mortgage or deed of trust from Party A to Party B

The language contained ONLY in the first few pages of standard Uniform Fannie Mae/Freddie Mac Security Instruments relative to MERS says that MERS can only (a.) foreclose and sell the property (which it is NOT now doing because of all of the litigation it has had to defend for doing so); and (b.) release and cancel the Security Instrument.  There is NOTHING in the language of the contract that specifically says MERS can assign anything.

Get noticed of anything

If you look in Paragraph 15 of most standard Uniform Fannie Mae/Freddie Mac Security Instruments relative to MERS, the only parties entitled to “Notice” is the Lender and the Borrower.  This was succinctly pointed out in the Ditto decision in Tennessee, which you can refresh your memory on by reading here: MERS v DITTO_TN Supreme Court rules against MERS!

The other issue you have to also take into account is that MERS could have gone into state court to open up the Quiet Title Judgment that Al West secured for the Robinson’s, yet it did NOT exercise that right, probably because it didn’t have any idea that the case was ongoing.  The Shin case out of New York clearly noted that MERS is never aware of the transfer of any notes, so how then can it react and file lawsuits when it is not a party to the note?

Also to consider is the fact that if MERS wasn’t noticed doesn’t really mean anything.  If MERS WAS actually a named Defendant in the Quiet Title action, which in the Robinson case it was not, that would surely indicate that all claims MERS might have against the property are still on the table because MERS WASN’T NAMED!   MERS does not care about this fact however.  Nope.  Instead of leaving things status quo and biting the bullet on a case or two, MERS decided to jump into the fray and challenge a quiet title action by “forum shopping” (taking the case to federal court based on diversity jurisdiction and the value of the home, which exceeded $75,000, which must occur for diversity jurisdiction to be upheld) based on unproven harm to its business model.  At no time have I seen any proof of HOW MERS business model is harmed, with an exact dollar figure.

If MERS doesn’t suffer injury per Restatement of Mortgages, Third § 5.4, then what damage can be proven?

Enter: The MERS Rider

This 4-page Rider (attached here: mers_rider) is what is going to trap the homeowner in virtual hell.  I can tell you with a certainty that the title company will glaze over this document at the closing table (because the title companies ARE IN ON THE MERS SCHEME … and that’s exactly what it is, a scheme).  I have made numerous comments about this Rider in the past, which you can look up on this blog, so there is no need to waste your time restating everything again. Signing one of these will: (a.) bring title issues to your chain of title; and (b.) put you in proverbial legal hell if you ever stop making your mortgage payments!

If it was me, and I was handed this “Rider” at the closing table, I would get up and walk out of closing.  Knowing me, I’d get in trouble for giving the escrow agent a black eye for even pulling this document out of a file and insisting I sign it.  As pointed out in the Ditto decision, there is nothing stated past the first couple of pages of a mortgage or deed of trust that says (vaguely) what MERS is and what it’s entitled to do, because the framers of that document DON’T WANT YOU TO KNOW about MERS, so they bury it in the document.  That in of itself should sour your taste from borrowing money from mortgage companies … especially mortgage companies, who say they can get you low interest rates (I’ll bet you MERS is involved in it up to their necks).

My amicus brief

If I was able to get my amicus brief before the U. S. Supreme Court, you can bet I’d point out the research in both land record reports I issued.  While MERS put out a full-page ad in the Austin American-Statesman in the first instance, when the OSCEOLA COUNTY FORENSIC EXAMINATION came out, things got quiet in Reston, Virginia (probably because MERS’s attorneys told the MERSCORP hierarchy to “put a sock in it”, so as not to drag MERS into a perpetual criminal foray). There are a lot of things for the nation’s highest court to consider … and I can tell you, MERS and its parent will fight like hell to keep their “fatally flawed business model” alive at all costs.  How do I know this?

A federal court clerk (in charge of handling docketing for pro se litigants) in the 8th Circuit was fired for hiding and delaying the filing of one pro se litigant’s paperwork after two other employees witnessed a bribery of said clerk on the street corner by what the witnessing clerks described as a “Bank of America junior lawyer”.   This is corruption at its finest folks.  The federal judiciary should be concerned and should be more open about this type of behavior because America has already gotten a bad taste in its mouth of the “status quo” and voted for change. Our court system is the last resort of sanctity for fairness and equity and if that portion becomes corrupted, nothing else matters except Patrick Henry’s famous saying about “the blood of Patriots and Tyrants”.  As to this, I believe the judiciary is fully aware.

More to come as details unfold in this high-profile case!

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Filed under Breaking News, Op-Ed Piece

ROBINSON CASE GOES BEFORE THE U.S. 9TH CIRCUIT COURT OF APPEALS!

BREAKING NEWS

The case of MERSCORP Holdings, Inc. v. Daniel and Darla Robinson is headed for the U.S. 9th Circuit Court of Appeals.

Oral arguments are set to be heard on Thursday, December 8, 2016 in the Pasadena, California branch and California Attorney Al West, contributor to THE QUIET TITLE WAR MANUAL is now admitted to practice before the U.S. 9th Circuit and is slated to present the oral argument, at the insistence of the Robinsons.

If you are within traveling distance of the Pasadena, California branch, Al West has requested that you “pack the courtroom” for this event! 

There are several key issues here that are of national importance, which is what some judges are saying makes this case a national landmark case:

  1. where a federal judge has reversed a state judge’s ruling on a quiet title action, when the parties who claim an interest had a state court remedy to open up the judgment and challenge it and failed to exercise that right;
  2. where MERS and MERSCORP came in and accused the judge of being an “actor” in depriving MERS and MERSCORP of their civil rights; and
  3. where MERS and MERSCORP claimed they were entitled to notice, yet there is nothing in the Robinson’s Deed of Trust that entitles MERS to: (a.) notice rights; and (b.) assign any interest to anyone.

OP-ED —

It is unprecedented that a federal judge would reverse himself and undo a quiet title action.  Needless to say, word has it that when the state judge found out that he was accused of being an “actor” because he “colluded” and “conspired” with Al West and the Robinsons to obtain a quiet title judgment, he was pissed!  Frankly, I don’t blame him.  Every other state judge should be worried as well … if the 9th Circuit deems that the state judge conspired with Al West and the Robinsons and allows this to stand, then every state judge in America can be overturned for any ruling by a federal court, just because some “shell” entity (or anyone for that matter) can come in and tell the court that their civil rights were violated!

That would also mean that anyone doing a quiet title action might as well forget it, because MERS and MERSCORP do not care about your property rights or your contractual obligation to defend title.  They do not care if your chain of title has been trashed or compromised, impairing its vendibility.  We’ve heard state judges even say, “The only parties that get to quiet title are the banks!”  So you know that the entire system is slanted in their favor because: (a.) judges are drawing pensions which are vested in these RMBS REMICs; and (b.) judges in this country are “bought and paid for” and there are very few judges that are standing up for the homeowner.

The Robinson case could end up in front of the United States Supreme Court because the circuits are split on what MERS is and isn’t allowed to do within the parameters of a contract.  The states themselves are split on what MERS is and isn’t allowed to do within the parameters of a contract.  Here’s some examples:

On February 10, 2011, in the case In re Ferrell Agard, New York Bankruptcy Court Judge Robert Grossman eviscerated MERS’s agency relationship in a scathing 37-page opinion, in response to affidavits filed by then MERSCORP Secretary William Hultman, who intervened in the case, trying to make an argument bolstering MERS’s authority to be an nominee and thus, an assignor/assignee of mortgages.  Negating that argument, Grossman wrote:

“The Court recognizes that an adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders which do business with MERS throughout the United States. However, the Court must resolve the instant matter by applying the laws as they exist today. It is up to the legislative branch, if it chooses, to amend the current statutes to confer upon MERS the requisite authority to assign mortgages under its current business practices. MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage recording process. This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.”

One month later (March 10, 2011), the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (in the case of Bank of New York v. Silverberg, Case No. 2010-00131, Index No. 17464-08) issued an opinion and order that went solidly against MERS, to wit:

“This matter involves the enforcement of the rules that govern real property and whether such rules should be bent to accommodate a system that has taken on a life of its own. The issue presented on this appeal is whether a party has standing to commence a foreclosure action when that party’s assignor—in this case, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS)—was listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes. We answer this question in the negative.”

That decision put New York State on the map against MERS in the appellate court level as well as in at least one bankruptcy court.  It should come as no surprise that Wells Fargo would later find itself in trouble with another bankruptcy court justice (Hon. Robert D. Drain) for using MERS in robosigning documents in favor of Wells Fargo, in an attempt to create fraudulent standing, based on a 150-page “foreclosure attorney manual”, instructing attorneys to simply contact Wells’s document manufacturing plant in Minnesota … and the folks there would just “make up an assignment out of thin air”, just for the purpose of proving up a proof of claim in bankruptcy court.  That case, In re Carrsow-Franklin, did not fair well for Wells Fargo when the debtor’s attorney, Linda Tirelli, exposed the attorney manual to the court.

 In Washington State, the decision in Kristin Bain v. Metropolitan Mortgage Group of August 16, 2012 rendered a ruling from that state’s Supreme Court (Case No. 86206-1, consolidated with 86207-9) that MERS was NOT a valid beneficiary under the Washington Deed of Trust Act.

Shortly after the Bain decision, the Oregon Supreme Court decided the same thing in Niday v. GMAC Mortgage LLC and Brandrup v. ReconTrust Company et al … and ruled MERS was not a valid beneficiary under the Oregon Deed of Trust Act. Shortly after the two Oregon decisions, the Montana Supreme Court decided that MERS did not have the authority (as a nominee) to appoint a Substitute Trustee in the Pilgeram v. Greenpoint Mortgage Funding, Inc. case.  These decisions were pointed out in the next paragraph.

On June 12, 2014, in a class-action lawsuit styled In re: Mortgage Electronic Registration Systems, Inc. (No. 11-17615), the U.S. 9th Circuit Court of Appeals ruled that a multi-district litigation panel set up in Arizona to look into the use of MERS in suspect fraudulent document manufacturing in a case in Arizona, reversing Count 1 of a federal appellate court ruling, wherein the Court opined (in 31 pages), the conflicts throughout the entire U.S. court system:

“There has been a wave of litigation in state and federal courts challenging various aspects of the MERS System. Almost all of the relevant law is state rather than federal. The results under state law have been inconsistent. See Weber, supra, at 246–56 (cataloguing the “schizophrenic position of state courts” on issues relating to the MERS System). Some state supreme courts have upheld the MERS System on issues ranging from foreclosure authority to recording requirements. See, e.g., Renshaw v. Mortg. Elec. Registration Sys., Inc., 315 P.3d 844, 846–47 (Idaho 2013) (holding that MERS may be a beneficiary as nominee for the lender, that assignments of the deed of trust between MERS members need not be recorded, that MERS was not liable to the borrower in negligence, and that the Idaho Consumer Protection Act did not provide a cause of action to the borrower); Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 501 (Minn. 2009) (holding that Minnesota law does not require recording of assignments of promissory notes among MERS members); Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249, 252 (Nev. 2012) (stating that, although a split note and deed are not enforceable, under Nevada law “any split is cured when the promissory note and the deed of trust are reunified”); Bucci v. Lehman Bros. Bank, FSB, 68 A.3d 1069, 1081, 1083–89 (R.I. 2013) (holding that MERS had the contractual authority to invoke the power of sale and the right to foreclose and that Rhode Island law did not preclude foreclosure where the noteholder and the mortgagee were not the same entity).

Other state supreme courts have reached essentially opposite conclusions. See, e.g., Mortg. Elec. Registration Sys., Inc. v. Sw. Homes of Ark., 301 S.W.3d 1, 4 (Ark. 2009) (holding that, because MERS receives no payments on the debt, it is not the beneficiary, even though it is so designated in the deed of trust); Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 166–67 (Kan. 2009) (“[I]n the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.”); Mortg. Elec. Registration Sys., Inc. v. Saunders, 2 A.3d 289, 297 (Me. 2010) (holding that MERS lacked standing to foreclose as the lender’s nominee); CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham, 278 P.3d 586, 592–93 (Okla. 2012) (holding that the putative noteholder lacked standing to foreclose because MERS lacked authority to assign the note, though it arguably had authority to assign the mortgage); Brandrup v. ReconTrust Co., N.A., 303 P.3d 301, 304–05 (Or. 2013) (en banc) (holding that MERS was not the “beneficiary” of a deed of trust under the Oregon Trust Deed Act absent conveyance to MERS of the beneficial right to repayment, and that MERS could not hold or transfer legal title to the deed as the lender’s nominee); Bain v. Metro. Mortg. Grp., Inc., 285 P.3d 34 (Wash. 2012) (en banc) (holding that “MERS is an ineligible ‘“beneficiary” within the terms of the Washington Deed of Trust Act’ if it never held the promissory note or other debt instrument secured by the deed of trust,” and that “characterizing MERS as the beneficiary has the capacity to deceive” and may give rise to an action under the Consumer Protection Act); see also MERSCORP, Inc. v. Romaine, 861 N.E.2d 81, 88–89 (N.Y. 2006) (Kaye, C.J., dissenting in part) (identifying concerns with the MERS system and “at least a disparity between the relevant statute . . . and the burgeoning modern-day electronic mortgage industry”).

Federal courts, applying state law, have reached similarly disparate results. Compare, e.g., Montgomery Cnty., Pa. v. MERSCORP, Inc., 904 F. Supp. 2d 436, 441 (E.D. Pa. 2012) (applying Pennsylvania law and holding that the County’s allegations that MERS violated recording statutes by failing to record assignments stated a claim for relief), In re Thomas, 447 B.R. 402, 412 (Bankr. D. Mass. 2011) (applying Massachusetts law and holding that “[w]hile the assignment purports to assign both the mortgage and the note, MERS . . . was never the holder of the note, and therefore lacked the right to assign it. . . . MERS is never the owner of the obligation secured by the mortgage for which it is the mortgagee of record”), and In re Wilhelm, 407 B.R. 392, 404 (Bankr. D. Idaho 2009) (applying Idaho law and holding that MERS is not authorized “either expressly or by implication” to transfer notes as the “nominal beneficiary” of the lender), with Town of Johnston v. MERSCORP, Inc., 950 F. Supp. 2d 379, 384 (D.R.I. 2013) (holding Rhode Island law does not require recording of assignments among MERS members); DeFranceschi v. Wells Fargo Bank, N.A., 837 F. Supp. 2d 616, 623 (N.D. Tex. 2011) (granting summary judgment to defendants on plaintiffs’ claims that assignments by MERS were invalid and rendered foreclosure defective), and Moore v. McCalla Raymer, LLC, 916 F. Supp. 2d 1332, 1344–45 (N.D. Ga. 2013) (applying Georgia law and holding that, even assuming the plaintiff had standing to challenge the foreclosure on the theory that MERS assignments were invalid, that theory did not provide a basis for a wrongful foreclosure claim).”

The foregoing was used simply to illustrate the disparity in case law involving MERS, which is further reasoned as a necessity for the Robinson case to go to the nation’s highest court. The foregoing is also an understanding of what the 9th Circuit is thinking (and what MERS and its parent are up against) regarding said disparities.

A month after the 9th U.S. Circuit ruling, on July of 2014, in the Bank of America, N.A. v. Scott A. Greenleaf case, the Maine Supreme Court decided that MERS was a “mortgagee of record” and thus, was only allowed to assign that right, and no other, which brought foreclosures to a screeching halt (by roughly 65% according to attorney Tom Cox, who argued for Greenleaf).

In December of 2015, the Tennessee Supreme Court went further than any other Supreme Court in the U.S. in the case of Mortgage Electronic Registration Systems, Inc. v. Carlton J. Ditto, a pro se litigant who won rulings from the district, appellate and the Supremes … one of the only pro se litigants going up against MERS that I can find to accomplish such a feat.  In that ruling, which I have discussed extensively on this blog, MERS has no authority to do anything according to the Court’s opinion.

Many other states have sported decisions in favor of MERS because attorneys representing homeowners had no idea what they were getting themselves into, further allowing MERS to get its arguments admitted into the record without objection because these same attorneys had no concept of MERS’s business model.  Had these attorneys read Robert Janes’ “SHELL-GAME MERS, Contrived Confusion” BEFORE going into court, the outcomes may have been different!

My take on this … and I will be in court for the hearings on December 8th … is that no matter what this circuit decides, one or the other of these parties are going to take this up to “the big top”!  Once the U.S. Supreme Court decides whether our nation’s court systems should support a private entity, which I conclude were created to hide the misdeeds and snafus of Fannie Mae and Freddie Mac, the sooner we can begin to identify and oust the legislators who put laws into place giving MERS credence anywhere in America.

The entire court system in America is at risk because of Robinson.  This author has is on good authority that the entire court system in the U.S. is watching this case with more than just simple interest.  The contract you sign at the closing table has everything to do with the arguments in this case, because a number of cases have been decided against MERS based on what the contract “didn’t say”.  I would opine MERS’s arguments are indeed “schizophrenic”, as the Tennessee Supremes ruled in Ditto.  We shall see.

 

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THE LAST QUIET TITLE WORKSHOP OF 2016!

BREAKING NEWS (from the poster)! 

For those of you who are planning to attend the Honolulu, Hawaii Quiet Title Workshop, please be advised of the following:

  1. This will be the last workshop of 2016 that Al West and I are doing together.  Either be there or miss out.
  2. This will be the last quiet title workshop that Al West and I are offering to the general public, due to lack of interest.  So, this is your last opportunity to have a powerful think tank at your disposal.  You can get the information on the workshop by clicking on the following links:
  3. QT WORKSHOP_HONOLULU_REGISTRATION FORM  (Please follow the instructions on the form!)
  4. QUIET TITLE WORKSHOP FLYER_HONOLULU  (I would recommend using discount hotel services to book your room and airfare, as our group discounts have expired!)
  5. I have decided to go a different direction involving my consulting work, which means I will be handling more attorney-based cases involving investors and homeowners who have retained counsel that is willing to accept consulting services; otherwise, I will only take cases on that basis.
  6. I am not a lawyer referral service; however, I can assist you in vetting attorneys, once you find them.  This will be done on a conference call basis for a flat fee of $75.00, payable by credit card in advance of the conference call.
  7. You can still purchase The Quiet Title War Manual, Clouded Titles and The Credit Restoration Primer from the Clouded Titles website.
  8. The online COTA Workshop is still in development and probably will not be ready until 2017.  If I become aware of any COTA Workshops being hosted by other entities in the future, I will inquire as to whether the folks who monitor this blog will be allowed to attend, at which point I will post the information accordingly.
  9. Any referrals to other consulting services outside of my immediate concern are the responsibility of those parties wishing to contact and contract with those services.  I no longer am working with outside parties who may or may not have further useful information to help you with your case.
  10. The rates on my COTAs now start at $1295.00 and go up from there.  I have a “full plate” and anticipate having a full plate for the next 3 years.  Despite what the banks, MERS and law enforcement have attempted to do in smearing me all over the media, with the help of a few self-proclaimed “investigators” who run  websites that state I ripped off the U. S. Government, I am still economically intact and am not going anywhere.  The Orlando Sentinel’s Henry Curtis got his story all wrong and was probably paid off by someone to write the article against the Osceola County Clerk in the first place, which makes his brand of journalism shoddy and unreliable at best, about as unreliable as you can get.  Any news outlet that would hire him would be a huge mistake and a disservice to the public at large. The current Osceola County Sheriff STILL isn’t running for re-election and the 9th Circuit State’s Attorney who refused to investigate the Forensic Examination commissioned by the Clerk was defeated in the Democratic primary last August.  The voters have awakened!

That being said … 

  1. I will still continue to post updated information on this site.  Once the online workshops are up, please note they are general in nature and are only there to help you formulate your research in conducting chain of title issues and will not offer legal advice, attorney referrals or any other subject matter information that is not relevant to chain of title.
  2. I will still continue to be the “foe” of MERS, MERSCORP Holdings, Inc. and the banks.  I am sick and tired of them and wish they were all in prison.  Unfortunately, the United States Government is in bed with the banks; yet the average, uninformed consumer still chooses to participate in impulse buying of homes they are NOT entitled to and cannot afford; thus, the same nonsense that plagued us in the 90’s and the millennia will continue to plague us for at least the next decade as the banks continue to water down the Dodd-Frank Act through their lobbyists.
  3. If you wish for Al West and I to come to your city to conduct a Quiet Title Workshop, there are firm parameters you will have to follow. You will have to guarantee 30 paid attendance for the event and the rate will be higher than what we normally charge to do a workshop and you will have to pay our travel to and from the event, plus meeting room and hotel rooms. No exceptions.
  4. I am still working on the FDCPA book.  This book is going to be a powerful think piece, in addition to all of the case citations, strategies and legal attack plans placed within this work, based on previous history of those who have been successful in such actions.  This has become the most formidable attack plan against the servicers and their law firms who lie in court about who they truly represent.  Yes folks, we are knee deep in servicer fraud.  In my estimation, the named plaintiff in a foreclosure suit does not know they’re the named plaintiff!
  5. The federal court systems (as well as the state court systems) are corrupt as hell!   Sure, there are a few judges out there that get it academically, but until you do your research and bring an adequate “game plan” to the table, all of the bad case law will continue to screw things up in the legal system because people may be mad, but they’re still unprepared financially and in all aspects of their education involving legal matters.
  6. Most attorneys have figured out how to scam homeowners for monthly payments and give them nothing in return.  I am still getting email from homeowners who are concerned that they may have picked the wrong attorney to represent them.  I am not an attorney referral service, but I have a few that I work with that I have found to be reliable.  If you have started your litigation pro se however, they may choose not to work with you.
  7. Please do not contact me about TILA and RESPA issues. That is not my focus.  There is narrow case law in these areas and you still aren’t going to get and free house, despite what anyone tells you.  I have been contacted by United States Treasury Agents regarding certain claims made by firms who tell consumers that all they have to do is file a rescission and they get a free house.  Unlike what happened to me 20 years ago, it is not me that is the target here.
  8. I will continue to do county land record audits.  If you know of someone who needs (or has indicated) they want one done, please let me know. If you’re in California, Al West will show the County Recorder how they can get a county land record audit done without the charges coming out of their budgets.
  9. Al West and I are still working on projects together.  Al West and I will be at the U.S. 9th Circuit Court of Appeals hearings on MERSCORP v. Robinson.  Yes, I authored quite a bit of the reply brief and I am very well aware (as MERS is) of the fact that MERS sent a mole in to bug our Las Vegas Quiet Title Workshop. I found out about that from information supplied to me that originated through a federal judge in Maryland. It would appear to indicate to me that the folks at MERSCORP Holdings, Inc. (and the U.S. government) understand that I am “not going away any time soon” … and if I do, it will be by their hand and their doing and not mine!  We are still coordinating efforts regarding certain AWL and ABC mortgage loans. We are also handling IRS Whistleblower cases!
  10. In certain matters, I may also be testifying in court. This still does NOT make me an expert witness. Please do not contact me to testify at your hearing or at trial.  If subpoenaed without my knowledge or consent, consider me a hostile witness ab initio.  I still want my day in front of the grand jury, be it state or federal.  I have a lot to tell them and show them.

Beware of whack jobs that continue to dwell on what happened to me 20 years ago.  As attorney Lynn Szymoniak eloquently put it … “it doesn’t matter what he did 20 years ago, what matters is what he’s doing now!”  If Ms. Szymoniak didn’t believe in what I was doing, she would NOT have shown up to my COTA Workshop to lecture to the class.  Please support The Housing Justice Foundation.

Finally, when I’m done with the FDCPA book, I am going to pick up where I left off and finish the “other book” I have been working on … a book which explains in detail what happened to me 20 years ago, the American legal system, American politics in general, and why Americans are becoming polarized in certain aspects of society.  The U. S. Government will definitely NOT like what is in this “other book” (although it’s not as dicey as “Snowden”).  If you get a chance to see that movie … this man should be exonerated and not indicted.  He just sent a warning shot to all of you out there that think you’re “secure” when you’re anything but.

No, I’m not a doom-and-gloomer.  Like many of you out there who are evaluating your future plans and strategies, that is a wise move in my book. Remember, the U. S. government is paranoid as a whole and government employees believe everything Uncle Sam tells them.  I have found trusts to be quite handy these days.

 

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Filed under Breaking News, Chain of Title Education, Financial Education, Quiet Title Education

BOWEL TOLERANCE … AND OTHER CAUSTIC BILE AND RUMINATIONS!

BREAKING NEWS!

(Kissimmee, Florida) — Incumbent Osceola County Circuit Clerk Armando Ramirez staved off two challengers in the Democratic primary to continue his campaign in November, where it appears he’ll be running against an old Circuit Clerk, GOP contender Melvin Thompson, who Ramirez defeated in a landslide election the last go-round.  As you may remember, Clerk Ramirez retained DK Consultants LLC to conduct a forensic examination of the real property and court records in Osceola County, Florida, which was shunned by Florida’s 9th Circuit States Attorney Jeff Ashton (who also just lost in the Democratic primary to challenger Aramis Ayala, who Ramirez has formally endorsed), the Osceola County Sheriff’s Department, a handful of apparently biased media and Tampa Foreclosure Defense Attorney Matthew Weidner, who appeared on WFTV in Orlando during a news segment, not having read the entire report, indicated the Forensic Examination was “not worth the paper it’s printed on.”  Weidner conveniently ignored the attorney opinion letter in the last four pages of the 758-page, two-volume report, wherein foreclosure defense attorney Jennifer Englert (The Orlando Law Group) posited several more issues above and beyond what the report factored into the results.  Hon. Ramirez of course will keep trying to get action on the Forensic Examination, despite being chided by his opponents and the media.  With Ashton out of the running, if Ayala gets the nod in November, a new door could be opened for a revisit and investigation of the Forensic Examination.  Few grand juries across America have been empaneled to do the right thing, which is stop servicer fraud.  Unfortunately, Dem. Alan Grayson lost in his Senate bid and is now out of the picture.

This forensic examination has caused a shit-storm in political sectors up and down the Eastern Seaboard.  You may wish to find out why by downloading a copy of the Report here: OSCEOLA COUNTY FORENSIC EXAMINATION

BREAKING NEWS! 

There is roughly 45 days left to reserve your seat at the last DK Consultants LLC-sponsored Quiet Title Workshop (Honolulu, Hawaii).  You can download the flyer to this event here: QUIET TITLE WORKSHOP FLYER_HONOLULU and the Registration Form (which must be filled out and faxed to the number on the form) here: QT WORKSHOP_HONOLULU_REGISTRATION FORM.

This will be the last class that Dave Krieger and Al West are going to teach in 2016 (for the general public).  Any other workshops that the two will be participating in will be sponsored by other investor and corporate groups and CLEs (we are ramping up and taking the fight to the people who have money to spend in legal fees); thus, this will be the only opportunity you will have to get the tools you need to fight the banks in quiet title actions!  This workshop features two hours of live broadcast on The Foreclosure Hour, with Hawaii attorney Gary Victor Dubin, which will take place on his Sunday, October 16, 2016 broadcast and will consist mostly of information sharing, recap of the two-day event, accompanied by questions from the registrants and attorneys attending the event.  Again, this is your only opportunity to attend our sponsored quiet title workshop.  We are not planning to hold any more self-sponsored events.  

OP-ED!

As to the term “bowel tolerance” … my question is …

How much more crap is America going to take from the banks before it says “enough”!!????

I pondered the answer to this question, because the answers are many and everybody has one.

Do we need to resurrect public lynchings?  I heard that coming out of some quarters.  Others are predicting an internal conflict, marginally bordering a civil war or all-out revolution.  This is obviously what the DC oligarchs don’t want.  Once the shadow government kicks in, all hell will break lose in this country.   Then, America will find out exactly what the United States Government has been doing with all of the tax dollars it has fleeced off of the working poor.

The U.S. government is afraid of mainstream America, so it uses the media to lull it to sleep so it won’t see the “gut punch” coming.  The government knows Americans are well armed and, if taken to task, could open up a can of “whoop-ass” on DC.  All of those who obediently serve, blindly too I might add, are those rank-and-file registered voters who all participate in the Age of Entitlement.  What they simply don’t get is that someone has to pay for those entitlements and there’s only so much America will take before things get dicey.

It is alarming to understand how many prisons and detention camps this country has and what they were purposed for.  This is not a conspiracy theory.  A recent article actually shows an increase in the number of prosecutions resulting in prison terms in America’s smaller counties.  I am not making this stuff up.  Read it here: This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined.   I beckon you to research Operation Garden Plot and see what you come up with in your search engine! Whether this is an intentional counterintelligence piece designed to bring “people out of the woodwork” so they can be readily identified and “dealt with” (like Waco, Gordon Kahl, Randy Weaver … and the list goes on and on), or the plain truth about government abuse and mindset in DC about how “they’re better than us”.  Are we really goyim to them?

So, even if you’re NOT a troublemaker per se, what do you think will happen if the real “agenda” of the U.S. government is put into play? This could also indicate why moving to small town America, thinking you’re going to be “safe”, may end up being just the opposite of what you expected.  Small towns in America are like churches.  Everybody knows everybody.  If you want to find out about someone, just go to their church and nonchalantly start asking questions.  You wouldn’t believe how un-sacred information gathering is because America has evolved into one big reality TV show and everyone likes gossip.  Frankly, I don’t give a shit what the Kardashians are doing at any given moment because they’re not paying my mortgage … nor are they paying yours!

I know that foreclosures are on the rise because I monitor short sale activity across the country.  The banks use short sales as a delay tactic so servicers can scheme more fees out of homeowners and calculate HOW they’re going to foreclose on their properties. The problem is, most of the properties being foreclosed on have clouded titles!  Despite what national economists are regurgitating, the foreclosures are cyclical and follow a major rash of short sales.  Only 10% of short sales (estimated amount) actually end up taking care of the entire debt.  This is the continuation of the plunging of America into financial depression, through financial suppression.

Investors and first-time homebuyers looking “for a great deal” would do well to avoid REO’s.  Frankly, the banks need to pay for what they’ve done to America and I don’t trust any of them, do you?   By buying these title issue-infested properties, you are not only asking for unintended future consequences, you are putting money directly into the pockets of the servicers and their foreclosure mill law firms, who most of the time are NOT entitled to foreclose on the subject property in the first place!

I can tell you four things I’m doing right now to counterbalance my contribution to the overall problem:

  1. I have pulled out all of my investments in major banks, stocks that invest in RMBS or CMBS items and cashed in or withdrew and redeposited bonds, funds and CD’s that have come due into credit unions.  I do not have any checking accounts with any major banks!  I’d rather put my money into a small, community bank or credit union any day of the week, at least for the short term.
  2. Plan to go off-grid.  Florida voters have just passed the solar initiative (for those of you who want to know) and it may serve you well to look at the new Tesla Model 3 (electric car priced at $35,000), which can be solar charged on a trickle, right from your very own home-owned and charged battery packs.  Beats depending on foreign oil and rising gas prices, eh comrade?
  3. Reducing debt.  That would consist of re-evaluating all credit cards with high interest rates or that are charging interest at all (including cards that offer no interest incentives for a period certain that are about to expire), looking at their credit limits and either paying them off in full and closing them, or in the alternative, replacing them with no-interest incentive credit cards for the next 6-12 months.  Do away with all major bank credit cards.  If you think it’s great racking up air miles, think of the interest you’re paying to hold those airline credit cards and see exactly just how much money you save on airline tickets versus the interest you pay.  Bet you’ll be genuinely surprised after you do the math!   Those who are so deep in debt will probably add to the rising bankruptcy filings across America anyway, so in the alternative, it’s a strategy, right?
  4. Reducing inventory. Liquidating the stuff you absolutely are NOT going to need in the future.  Hoarders are going to hate me for this, but having too much stuff is of major “psychological concern”, because in time of disaster, you can’t take it with you anyway, so you might as well liquidate it for a price, even if it’s at a loss, and use the inventory reduction to pay off debt.

You may also wish to start exploring and traveling around America and other parts of the world with your liquidated gains, post-debt. You may find other locales are more suitable and to your liking and even more economically “feasible” to live within your means in. This also means you may wish to acquire acreage, plant a garden, have a greenhouse (for legitimate purposes), learn to can food.

Sorry, but every time a hurricane or major disaster strikes, you bet I have this thought process running through my head.  It’s called,
“Be Prepared!”  It appears America may be headed for a more serious economic downturn which requires a bit more strategic planning.

Scout’s honor!

(Feedback and discussion on this blog site is always encouraged, just don’t share your personal foreclosure cases on here!)

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