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:
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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|
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).  (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
OP-ED — Now for the speculation as to why the 9th Circuit cancelled the hearings. Here is some of the scuttlebutt floating around:
- “Someone got to the Chief Judge.”
- 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.
- The political tide is shifting in favor of the banks with the election of the Donald.
- Ipsa Res Loquiteur.
- Certainly NOT because I was going to be there.
- MERS and MERSCORP own the Courts too! (example: See Minnesota, “MERS Statute”)
- No matter what the 9th Circuit rules, they already know this case is going up to the United States Supreme Court.
- Rioting in the streets; protests in front of the 9th Circuit.
- Appellate Judges don’t want to hear the truth either.
- 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 firstname.lastname@example.org 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!
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.
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!