August 16, 2012 is a day that will go down in Washington State’s history when it comes to dealing with the issues created by the licensed lenders in that State who rely on MERS to cover up “dead spots” in the chain of title to properties. I’m attaching the Supreme Court’s en banc ruling to refresh your memory and to fill in any gaps that might be missing in your thought process.
Only a handful of states in the union agreed with the Washington Supreme Court’s decision insofar that MERS was NOT a real “beneficiary” because it didn’t loan any money and therefore, had no interest in the borrower’s promissory note. In fact, during the oral arguments presented before the Supreme Court, counsel for Mortgage Electronic Registration Systems, Inc. (not “MERS”, which means MERSCORP Holdings, Inc.; I’ll explain in a moment) could NOT identify WHO owned Kristin Bain’s mortgage loan! That didn’t bode well before the justices, who were stunned at the lack of knowledge and almost sheer arrogance of MERSCORP’s counsel.
You see, what the Washington State Supreme Court justices were never presented with, and thus did not have in evidence to be able to make a determination of, is that the Rules enacted by the parent of Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc. (then MERSCORP, Inc.), specifically note that under Rule 1 § 1, when the term “MERS” is used, it means the PARENT, NOT THE CHILD! Mortgage Electronic Registration Systems, Inc. is THE CHILD. The lack of knowledge by the attorneys for the homeowners (for Bain and Selkowitz) and the deliberate omission of MERS’s own “rules” by its representative counsel should be cause for alarm in the way cases are being litigated all across the country!
THE PARENT AND THE CHILD ARE NOT THE SAME!
In fact, they are two distinctly separate Delaware corporations. This was a contrived scheme of mass proportions, created in favor of the banks, which caused tens of millions of fraudulent and misrepresentative documents to be recorded into the land records of all 3,041 counties, townships and boroughs in the United States, literally clouding titles to over 80-million properties!
Thus, when Mortgage Electronic Registration Systems, Inc. shows up in any legal proceeding, it’s the “empty shell” (a bankruptcy-remote entity with no assets or liabilities; no income or expenses; and no employees) that shows up in court … NOT THE PARENT! MERSCORP is footing the legal costs in every proceeding (because it is a roughly $2.7-billion a year business model) that operates and argues on the flawed idea that the agent (nominee) and the beneficiary can be one in the same party.
The Tennessee Supreme Court completely gutted the MERS business model in the Ditto decision. MERS v DITTO_TN Supreme Court rules against MERS! To NOT understand all of the basic tenets of real property and mortgage law could be fatal to you in your foreclosure case!
This is why I am hosting the Foreclosure Defense Workshop in Orlando on September 30-October 1, 2017. (see below)
Part of the “good fight” in dealing in foreclosure actions is knowing the truth and how to find it (or go after a determination to get at it). This is a lot of what we are teaching in the workshop, even if you’re going pro se!
You have little time to make reservations, because airfare is going up the closer you get to the date and the number of seats to the event has dramatically shrunk. If you are even thinking of remotely preparing yourself to “fight the good fight”, you need to be at this event! Since Hurricane Irma hit Florida and knocked out a lot of the internet connections, many Florida consumers won’t know about this event until this weekend and likely, there will be an onslaught of registrations at the last minute.
Meanwhile, back in Washington State …
It appears that the regulatory agencies that govern the behavior of the banks aren’t falling all over themselves to stop the continual process of recording documents in the land records that makes use of MERS as a “beneficiary”, post-Bain. Here is one such Consent Order, issued in 2017, that exemplifies my point (sent to me by one of the readers of this blog):
The Consent Order appears to have noted that a violation of the Washington Consumer Protection Act [RCW 31.04.027(2) and (13)] occurred when Planet Home Lending, a lender licensed under Washington law to conduct business in the State, caused several Assignments of Deeds of Trust to be filed in counties all across Washington State, post-Bain, characterizing MERS “as the beneficiary when MERS did not hold the corresponding promissory note.”
While I was not provided with any specific Assignment to review, I would guess (and my guesses are usually pretty right on) that the Assignment was created by employees of the servicer of the loan. Recognizing this scenario is important for two key reasons:
- If a consumer is economically affected by the recording of one of these subject, suspect Assignments, the consumer would have to assert a specific violation of the foregoing state statutes; and
- If the Assignment of Deed of Trust used MERS to characterize the Assignor as a “beneficiary”, post-Bain, for the purposes of transferring any rights in the note to a REMIC, or even more importantly, to the servicer, who then commences a foreclosure action against the Property, then there may also be a violation of 15 U.S.C. §§ 1641(f) and (g), the Federal Consumer Protection Act.
Through the use of the federal citation, the case then becomes a federal issue, so one would have to get a competent attorney to sort through which would be more effective to prove (as a Plaintiff) against Planet Home Lending, the violation of the Washington Consumer Protection Act (which has a supporting Consent Order to apply to the case as evidence) or the Federal version of the same.
The problem is however, that the Consent Order implies that Planet Home Lending didn’t admit to guilt, even though the State found violations of the foregoing Act (under Agreement and Order Paragraph C). For all intents and purposes, the Order basically said, “Don’t do it again!” and by agreement, any further violations of the Order would be dealt with in the future (to what extent, we do not know).
Now, I can surmise that all of the litigious folk out there affected by the issuance of this Consent Order have realized that there is nothing stopping a consumer from bringing a private right of action against Planet Home Lending (or any other lender or servicer violating the Washington CPA). However, I caution those considering such to use due diligence in determining “damage”, whether actual, compensatory, exemplary or punitive. Without some sort of financial loss, it may be more difficult to press forward with a CPA violation claim.
That being said, it appears that suit may be brought under the foregoing state statutes in lieu of any decision like Yvanova v New Century Mortgage Corp. et al (California) and Miller v. BAC Home Loans Servicing, LP, 726 F. 3d 717 – Court of Appeals, 5th Circuit 2013 – Google (Texas) that gives consumers the right to challenge the creation of (and subsequent recording of) a suspect document affecting chain of title in the land records of any county in Washington State. This may also apply in other Consumer Protection Act-related statutes across the country, but it is likely that a consumer would have to conduct some pretty specific discovery (against the mortgage loan servicers’ employees and notaries) to see who ordered the creation of the document and who caused it to be manufactured, for what purpose and determine accountability.
It should also be noted that civil conspiracy is defined in virtually every state statute. While this term does not in of itself, constitute a cause of action in the literal sense, the act of one or more actors getting together and conspiring to do a thing to scheme that adversely affects the economic or financial well-being of another would certainly be an issue to be considered.
In Florida, for example, Florida Criminal Code § 817.535 makes it a third-degree felony to record a document containing false and misrepresentative information with the intent to deprive another of their property. While consumers cannot commence criminal proceedings directly, they can file a criminal complaint with the local sheriff’s department (the county land records are the sheriff’s jurisdiction) and pursue a criminal case that way, especially if discovery shows that a civil conspiracy to create the document indeed occurred. You should understand that (based on our past dealings with a certain sheriff’s department) detectives at the county level are either lazy, in defiance of or lack the knowledge to properly and fully investigate such matters, as evidenced by the Osceola County Sheriff’s Department, who could find no wrongdoing in the OSCEOLA COUNTY FORENSIC EXAMINATION.
The foregoing subject matter is only PART OF what we’re going to cover in the upcoming Foreclosure Defense Workshop. Thus, the tools and weapons that pro se litigants and litigants being represented by counsel are being refined to be more effective and the means by which documents are challenged has also been refined (AND PROVEN) to work! There are three specific things I’m going to be sharing at the workshop in this regard, in addition to the newly-developed tactics by Rich Kalinoski, the attorney lecturing to those attending this workshop.
Again, this is the ONLY workshop we’re doing in 2017. We have not decided whether we’re going to do another workshop again. Rich is very busy implementing his new developments and for this reason, may stifle any efforts to conduct a workshop in the future. Know this … legal tools will be available to all of those who attend!
In the meantime, keep researching and “fighting the good fight”.
Dave Krieger is the author of several books, including Clouded Titles, available on his website. He consults attorneys in foreclosure matters and drafts pleadings and conducts research for attorneys and litigants. Mr. Krieger is Managing Member of DK Consultants LLC in San Antonio, Texas.