Tag Archives: COTA Workshops

MERS AND ITS ROLE AS A PLAINTIFF AND DEFENDANT … OR THE LACK THEREOF!

(OP-ED) — This is an educational overview as to what has taken place in the American legal forums in the last two decades and my take on what it all means:

UPDATE: Please see my comments to Lori’s question in the comments section as to Bank of America’s claimed “successor by merger” BS to BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing, LP, especially using MERS to hide the real truth!

HISTORICAL PERSPECTIVE

On January 1, 1999, Mortgage Electronic Registration Systems, Inc. and its parent MERSCORP, Inc. (“MERSCORP”), surfaced as a new brainchild of the mortgage industry after two previously-failed efforts to put an effective electronic database into useable form.

MERSCORP is the “brain” part of  the “brainchild” … Mortgage Electronic Registration Systems, Inc. is the “child” part of the “brainchild”.

The acronym known as “MERS” was attached to the “brainchild” to further confuse the system of things from being able to specifically identify whether the parent or the baby bastard child is coming into play at any given moment.

According to research done by Robert M. Janes, J.D. (retired attorney) in his work SHELLGAME MERS, Contrived Confusion (available at esprouts.com), the “MERS” known in mortgages and deeds of trust as Mortgage Electronic Registration Systems, Inc. HAS NO “MEMBERS”, despite what attorneys for “MERS” have told judges all across America.  The entire system of things has bought into this crap.  Our entire judicial system has been permeated with lies.  As Hitler’s propaganda minister Joseph Goebbels stated (paraphrased), “tell a lie long enough and often enough and people will come to believe it as truth.”

MERSCORP however owned everything known as the MERS® System, up until the time that Intercontinental Exchange, Inc. (“ICE”, who also owns the New York Stock Exchange) bought MERSCORP and all of its assets and transferred all of the MERS servers to Mahwah, New Jersey, where ICE’s data servers are located.  This happened in October of 2018.  From February of 2012 until October of 2018, MERSCORP was merged into MERSCORP Holdings, Inc. and operated as such until ICE acquired it.

MERSCORP had all of the “Members” who technically are users and subscribers of its “MERS® System”.   They have an executory contract with MERSCORP.  As far as I can tell, when ICE acquired MERSCORP Holdings, Inc., ALL of the databases, memberships and every other facet of MERS went with the sale and transfer to ICE.

These latest developments also beg the question: Do I have to sue Intercontinental Exchange, Inc. if I want to go after MERSCORP Holdings, Inc., since ICE now owns MERSCORP?   That’s a question for counsel to answer; however, I personally wouldn’t sue either one of them, knowing what I know about NOT giving MERS a “leg up” … and given the fact that MERSCORP is now backed by the power of Wall Street funding!

MERS WANTS TO BE “ALL THINGS TO ALL PEOPLE”

Unfortunately for MERS, one State (Tennessee)’s Supreme Court gutted MERS’s business model like a chicken in the Ditto decision.  See attached:

MERS v DITTO_TN Supreme Court rules against MERS!

Unfortunately for the other 49 States, their respective Supreme Courts did not issue a ruling as succinctly as Tennessee’s ruling was.   Only Washington (Bain), Oregon (Niday and Brandrup), Montana (Pilgeram), Maine (Greenleaf and Saunders), New York (Agard, Bresler, Collymore and Silverberg), Kansas (Kesler), Arkansas (SW Homes), Nebraska (Dept. of Banking and Finance) and Missouri (Bellistri) did some damage to the MERS® System, but nowhere near the damage inflicted in Ditto.

Sadly, for the rest of the country, especially in Minnesota (Jackson) and Michigan (Sauerman), where the foregoing cases have propelled the MERS business model into fruition, homeowners in those states (except Minnesota and Michigan, where homeowners are essentially f**cked) have a long, uphill battle against any securitized trust that made use of the MERS® System to do its bidding.

REPUDIATION AGREEMENTS: A POTENTIAL WAY OUT

If you were lucky enough to have a mortgage loan originated by New Century Mortgage Corporation or Fieldstone Mortgage Company, you may have a legal solution as a possibility to consider in maneuvering through the legal pitfalls created by the use of MERS in your mortgage security instrument.

To date, to my knowledge and research, these two entities were the only two entities that had executory contracts with MERSCORP (or any form thereafter) repudiated their contracts with the MERS® System and its owner/parent MERSCORP Holdings, Inc.    See the attached below:

NCMC Notice of Repudiation

The foregoing repudiation was validated in the case of DiLibero v. MERS in Rhode Island.  I like to use this case because the Rhode Island Supreme Court likes to rub homeowners’ noses in MERS’s bullshit every chance it gets because Little Rhody’s lower courts have bought into the lies propounded by MERSCORP-retained attorneys.

See the case here: DiLibero v MERS_2015-13-190

In a previous post, I talked about the positive outcome of using the repudiation agreement as a means to assert the lack of standing of the Plaintiff Bank, unlike what happened in the Cruz v MERS case, where Cruz lost because he didn’t use the repudiation agreement. Duh?  (Was Cruz or his attorney even aware of this?)

See the case here: Cruz v. MERS_2015-12-136

The second known notice of repudiation was filed in the bankruptcy case of Fieldstone Mortgage Company, in a rather voluminous omnibus filing:

Fieldstone Mortgage Bankruptcy

As I teach in my COTA Workshops, repudiation of a contract in a Chapter 11 proceeding is like taking a dump.   Getting rid of excess baggage that could potentially weigh you down as to legal issues coming back to bite you in the ass.

In what I’ve just presented, both entities unilaterally decided they didn’t want to play in the MERS® System any further because they deemed it a potential liability and thus NOTICED MERS that they were ending their relationship with MERSCORP.  This has provided at least one homeowner with an “out”.

In what I deem is a “new twist” to the equation, the New York-based law firm of Jenner & Block (where Neil Barofsky works), issued a memo, dated January (2019), entitled “Recent Developments in Bankruptcy Law”, wherein Section 9 talks about “executory contracts” and where the debtor in possession (of whatever is part of the debtor’s estate or business) does not need court approval to repudiate (or cancel) an executory contract (see below):

NOTE: Click on the picture to see it in full size!

For a full copy of the report (in PDF format): Recent Developments in Bankruptcy Law, Jan 2019 (Jenner & Block)

What does THIS SAY for Chapter 11 petitioners who repudiate MERSCORP executory contracts NOT needing court approval?   How do you know a MERSCORP executory contract with a so-called “MERS Member” was cancelled by the Chapter 11 debtor unless you ask about it (in discovery)?   Would you care to go rummaging through bankruptcy court filings (at ten cents a page)?   The repudiation agreement by the defunct lender or notice of such may not even be in there!

MERS AS A PLAINTIFF

In the states that allow Mortgage Electronic Registration Systems, Inc. to file a foreclosure action against a borrower, MERS is simply claiming that it’s exercising its right to foreclose per the language in the security instrument.  In some cases I’ve seen, MERS’s attorneys even come in and attempt to claim a surplus after the sale, even though MERS itself receives no payments, incurs no financial harm, etc. (see Restatement of Mortgages, Third § 5.4), which I think the law firm is clearly attempting to pilfer whatever surplus it can get for its own gains and not those of MERS or its parent.

The problem I have with MERS being anywhere near a foreclosure is not so much the contractual angle, but the damage angle, based on the Spokeo v. Robins decision by the U.S. Supreme Court.  How was MERS damaged?    In the Robinson case in California, MERS plead to the 9th Circuit (as part of getting the appellate court to affirm the lower court’s ruling) that its business model would be harmed if the appellate court didn’t rule in its favor.  You see how the lie permeates into the appellate court system?

Sadly, I liken MERSCORP CEO Bill Beckmann and his Board of Directors as a little Hitler and his band of little crony “yes-men”.   They all need to be in jail!  And speaking of Hitler …

MERS AS A DEFENDANT

The main reason that MERS (as Mortgage Electronic Registration Systems, Inc.) is listed as a Defendant in foreclosure cases is because the Plaintiff REMIC or servicer (posing as the party claiming to have the right to enforce the security instrument) wants to notice MERS in order for MERSCORP employees to check the database to make sure that there aren’t any other “mesne assignees” hiding somewhere within the chain of custody of the electronic trading going on involving that alleged loan, in order to provide a “clearing” of potential unknown Defendants that may come in later and file a claim in the case.

THE SUPREME COURT HAS (TO DATE) NOT ALLOWED ANTI-MERS CASES TO COME BEFORE IT

Writs of Certiorari have tried and failed.  However, I still believe that we will continue to see more MERS-related decisions appealed to the nation’s highest court until the matter of MERS’s flawed business model and the damage it has inflicted on over 80-million homes finally gets resolved.

THE BOTTOM LINE IS STILL THE ASSIGNMENTS: THE DEVIL IS IN THE DETAILS! 

Again, if you go into the back of The Quiet Title War Manual, you will see state-by-state listings of statutes that cover certain elements of law involving quiet title, declaratory relief, deficiency judgment law, etc. … and below that section, three individual paragraphs on actionable statutes and case law involving violation of statute in the recording of documents into the land records which contain false information (many of which are felony-rooted in nature) or violate provisions of state consumer protection act laws.  We are now (based on my past posts) seeing the use of these mechanisms in attacking the banks’ attorney(s) (because sometimes there is more than one attorney or law firm involved in any given foreclosure) in turning a statutory violation into an ethical violation!

When a foreclosure mill attorney is put “at risk” of being suspended or being disbarred for suborning perjury, committing perjury or some other ethical misconduct, do you really think he (or she) is going to want to stay in the fight?   Further, what future substituted law firm would want to step “into the pile of poop” created by the first law firm, knowing it would put itself “at risk” of having its Errors & Omissions insurance policy attacked?

Things To Watch Out For …

  1. Any entity that has filed for Chapter 11 Bankruptcy before 2010 … as to whether they got court approval to repudiate the MERSCORP executory contract.

This provides you with a potential argument (or at least an affirmative defense to a foreclosure) that MERS and its alleged “agents” (“officers’)  for the “nominee” has any authority that was repudiated by the originating lender (debtor-in-possession);

2.  Assignments dated AFTER the originating lender filed for bankruptcy (easily discovered on Google or Google Scholar).

You especially want to check for language within the assignments (of mortgage or deed of trust) that says, “together with the Note”, because MERS cannot transfer what it does not have an interest in.   Secondly, not many people argue that there is no specific right delegated to MERS to “assign” anything.   Thirdly, NOTES ARE NEGOTIATED … not transferred or assigned; and

3.  Any mortgage foreclosure complaints, notices of trustee’s sale or similar notices that reflect that MERS has any authority to do anything, specific to the state of the union you are in.

Certain states, as I’ve mentioned before, do NOT allow MERS to do much of anything, while in other states, MERS can pretty much steamroller over homeowners.

My question is, why are you still living there?   Or better yet, why haven’t you attacked the assignments in Consumer Protection or statutory claims?

The Devil Is In The Details

Always check the assignment of mortgage or deed of trust for:

  1. Self-dealing (by the servicer and its employees);
  2. Claims that the note was “assigned” in addition to the mortgage or deed of trust by MERS;
  3. Names and addresses of law firms involved in the assignment;
  4. Names and addresses of title companies involved in the assignment;
  5. Names and addresses of servicers involved in the assignment that claim the Plaintiff’s address is in c/o the servicer’s address;
  6. Names of known robosigners involved in the assignment;
  7. Names of notaries participating in the assignment that are acknowledging under PENALTY OF PERJURY;
  8. Phony MERS addresses (like their alleged Ocala, Florida address, which actually belonged to Electronic Data Systems);
  9. Dates of assignments that well post-date the REMIC’s 424(b)(5) Prospectus Cut-Off and Closing Dates;
  10. Post-dating or back-dating of the assignment; and
  11. Documents created in one state that are executed in another state.

Any of these “details” can be used as evidence to go after the law firm attempting the foreclosure!   And THAT my friends … is how the system of things should work!

Coming soon …

P.S.: Hat tip to David A. Rogers, Esq. of Austin, Texas for the Fieldstone materials!

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Filed under OP-ED, Securitization Issues

IF YOU FEEL LIKE YOU’RE ONLY GETTING HALF THE JUSTICE YOU DESERVE … YOU’RE NOT ALONE!

(BREAKING NEWS — OP-ED) — I have spent years doing research about the financial mess we have in America.  I first confronted this issue in the early 1990’s, when many of my friends (who were more creditworthy than I) would come to me, telling me they were “in over their heads” in credit card debt, on top of having to pay a mortgage loan.  In retrospect, my own personal situation wasn’t necessarily plagued by that same scenario.  Mine was figuring out a way to make an honest living by “working smart”.  People spend all their lives working hard, paying interest upon interest on a 30-year mortgage (mort = death; payments until death).  Now, student loans have taken the place of mortgages as the #1 stresser.  Why?  It may not be because we’re a nation of over achievers. It’s because we’ve been programmed by our parents who didn’t have it as good, wanting us to have it better than they did.  So what did they do?  Give us the ‘ol pep talk:  Go to school. Get good grades.  Graduate with a diploma.  Buy a car.  Go to college.  Graduate with a degree.  Get a good job.  Get married.  Buy a home.  Raise a family.  Work hard. Retire. Leave a legacy.

This all sounded well and good back then; however, the pep talk did NOT include financial education of the kind we’re used to.  Even today, what little financial education is taught in secondary and post-secondary education is severely limited.  They did not teach “CAR LOANS 101” in high school.  They did not teach “STUDENT LOANS 101” in high school.  They did not teach “MORTGAGE 101” in high school.  Hell, they didn’t even teach “CHECKBOOK 101” in high school.  Do they even teach this in college?  Not hardly.  Economics?   I had a Korean professor in college I could hardly understand, which made economics more boring than ever.  I still managed to learn something; but it wasn’t enough to sustain “real world living”.

Couple that with our national media and its advertising campaigns.  Look at what’s on TV today!  There’s more commercials for car loan financing, mortgage loan financing, buy now … pay later campaigns … than you can shake a stick at.  I know that sounds cliche, but have you ever actually watched these commercials and how you’re being baited?  Now imagine your kids are getting the same programming on prime time TV.  This is not only America’s problem.  This is a global problem.  It’s just that Americans have more disposable income than 90% of all the other countries in the world.  And what do Americans do?  Ask how many Americans how deep in debt they are and you’re just scratching the tip of what I call “the system of things”.

I will be discussing “the system of things” as part of my new, upcoming nationally-syndicated radio show:

After writing numerous books since 1995 (and having been exposed to radio since 1968), what else can I do to help make America a better place?   As with every endeavor, there are always going to be naysayers pointing fingers; however, the stuff that we will be talking about on THIS radio program is NOT intended to shock the conscience.  It is not “shock jock” radio.  These are 25-minute segments that discuss the very things that America is lacking, because 25 minutes is about all anyone can take because our “input stream” has been overloaded with indoctrinated “system diatribe” and developing this program was even a learning curve for me.  If you think this is going to be an Alex Jones-type program … sorry … I don’t make my life all about conspiracy theories, despite the fact that “the system of things” is full of them!  I do NOT support the Republican party.  I do NOT support the Democratic party.  It’s a single party system of oligarchs that control “the system of things” anyway.  Most of America just hasn’t noticed that yet.   Then there’s “deep state”.  Yes … that actually DOES EXIST!  It’s NOT a conspiracy.  It’s a bureaucracy.  It’s what is running this country, much of it unfettered and without immediate oversight or accountability.

To add to the dimensional quality of this program, I intend on taking up the online educational focus on chain of title issues through an 8-hour COTA Workshop.  I will share what research I have learned over the last 10+ years on my Clouded Titles website.  I know, it’s been long in coming … and I do not feel like conducting two-day events all over the U.S. that only produce a handful of Americans that have finally awakened to the truth about “the system of things”.   We have determined that two (2), four-hour teaching modules is what is necessary (with handouts delivered directly to you in your “inbox” in PDF format) can easily accommodate what many who have attended my previous classes call, “information overload”.  And we will make it affordable for everyone so that you can sit in the comfort of your home, on your computer, and get the real property portion of “the system of things” you didn’t get in high school (or even college).  And it won’t take up your whole weekend.  In other words, my 3-day COTA class will be streamlined into one day, because people have to work and support their families.   I will make this program available once every 3 months. These programs will not be all the same thing because “the system of things” changes from time to time … thus, there are updates to share, based on new research and case law.  I will have attorneys on the program from time to time because homeowners who are in trouble need perspective from a legal standpoint.  This is all part of the educational process.

Like credit reports, people need to check their public record files once every six (6) months to see what’s there.  Financial planning (PLAN B) is NOW required these days because we are headed for another cyclical recession despite what all of the talking heads on TV are telling us.  America has a Congress that is bipolar and self-serving.  You can’t run a country whose political hierarchy promotes “pushing back” (unintended consequences of violence) against others who believe differently than you about “the system of things”.  The “system of things” was created because Americans, as a whole, the body politic, ALLOWED IT to be created.   We worry about our toil and our last meal while our government tries to play “nanny state” games with us.  Why?  Because we’re not educated.  They are.  They think they’re better than us.  This is what an oligarchy is folks!  And we let them make us worry about what they’re doing when we should be concerned more about what we’re doing.  Our current behaviors are what is driving us into a “class war”.

Change starts at home.  Change filters out into your locale (be it unincorporated area, township, city, county, whatever ) because of the need to communicate with others besides those in your own household.  You have more control over your local government than you realize.  We spend so much time behind locked doors because our “pre-programmed condition of servitude” has caused us to hide in fear (and maybe even shame) because of what America has become.

If you think that complaining to the government will do you any good … you can forget that.  Government is too busy trying to figure out how to exist in such a way that you will be lulled into a false sense of security.  This is one of the reasons my new show is going to tackle both the legal and political angles, tying them together into social perspective so the average consumer will “get it”.

Justice begins at home.  It was handed down over centuries.  It’s called discipline.  If people were totally disciplined and walked in love, we wouldn’t need laws because everyone would be doing “the right thing”.  Because America is not a safe place to live anymore (don’t kid yourself if you think it is), Americans need to condition themselves to be more disciplined and that happens through education.  The betterment of our justice system begins with education.  Most Americans don’t even know what a “federal reserve note” is and what it represents.  Just ask any kid in high school if they know what it is.  You’d be surprised at what you’ll hear in response.  What’s in your wallet DRIVES the justice system (and we don’t even realize it).  That’s why we … as a collective body politic … need to get at the truth of what is going on and then deal with it in an appropriate, albeit civil manner.

The system revolves around the dollar … how it is made … and how it is spent.  Once you get a complete “handle” on that concept, your life will be easier and your “system of things” will change for the better.  Until then, the justice you think you deserve is like the glass half empty.   Every American is affected by it.   It’s a mindset that has to change if America is going to survive the recessions and political upsets of the future.

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Filed under BREAKING NEWS, OP-ED

WE SALUTE ANOTHER FALLEN COMRADE!

(BREAKING NEWS — CORAL GABLES, FL)

We have just learned of the untimely passing of attorney John Herrera, who diligently fought foreclosure actions in the courts in Broward and Miami-Dade Counties in South Florida.  I went to trial with John on two of his cases.  Magically, they both settled; however, it is unsettling that we lost a freedom fighter so young (aged 53, on August 3, 2018).

As you may remember, John received second and third degree burns to over 60% of his body some time ago in a barbecue grill gas explosion.   Afterwards, he went through multiple skin graft operations and walked with a cane afterwards and was never the same, health wise.  John graduated from St. Thomas University School of Law and was also in the U. S. Marine Corps.  I had the pleasure of hosting a COTA Workshop in his “war room” (where he conducted his depositions).  John was one of the few foreclosure defense attorneys who would speak up when a court judge attempted to help out the bank during a foreclosure trial (“Gee, your Honor, I’m glad I’m not litigating against YOU this afternoon.”).   Those who knew John know what a kind hearted man he was. He was a true fighter for the little guy.  He even twice lectured at our COTA Workshops in Orlando and was a pleasure to work with.  He was even more fun at dinner at Fleming’s, where he would made the chef do his steak blood rare, while imbibing in a single-malt McAllen Scotch.  John will be sorely missed.  Our condolences go out to his wife Anouk and his children during this hard time.

John will be sorely missed.  God Bless You, Mr. John Herrera.  You have crowns laid up for you in the big courtroom in the sky.

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Filed under BREAKING NEWS