Tag Archives: PSA

WHY UNDATED INDORSEMENTS FAIL

Under the subject matter of Debt Collection, Foreclosures and Chain of Title Education …  and Op-Ed as well:

UPDATED ON MARCH 19, 2017

The following diatribe is not to be construed as legal advice, but rather for educational purposes only.

A number of issues have surfaced in recent years, in light of the foreclosure crisis, two of which involvement indorsements on the promissory notes (or their respective allonges) and one regarding who the real parties in interest are when the MERS® System is involved.  By no means is any of this finite, as research is continually ongoing as to the “flaws” in the MERS business model, which to me, is impliedly criminal in nature. I don’t care whether this “business model” has been trademarked either.  It has left the door open for criminal RICO behavior and MERSCORP and its shareholders provided the platform for the thievery.

To me, the MERS® System was not only created as a platform by which to (as MERS’s own officers tell it) electronically transfer mortgages and notes within a database (owned by then-MERSCORP, Inc.), but also to act “as the getaway car” in the theft of tens of millions of residential properties across America ever since MERS became involved in mortgage foreclosures.  Like it or not, this smacks of criminal RICO.  MERS and its parent, of course, will deny any wrongdoing, like they did when I released the Williamson County Real Property Records Audit in January of 2013.

In fact, MERS was so vehemently upset with the release of the Williamson County Report that they caused to be published almost a full-page ad in the Austin American-Statesman newspaper on February 7, 2013, denying any wrongdoing and attempting to rebut the contents of the Report, which was reviewed by more than a half dozen foreclosure defense attorneys prior to its release and was accompanied by a legal opinion. One would have to ask, “How could little ole’ Dave Krieger write a report that would piss off the MERS hierarchy all the way to Reston, Virginia?”

I was inundated by phone calls from reporters at the time, attempting to elicit a comment as to MERS’s statement that “it didn’t do anything wrong”.  My simple response to them was: “If MERS didn’t do anything wrong, then why is everybody suing them?”  The reporters just laughed, affirmatively responding in kind and didn’t ask me any more follow-up questions.

In previous posts, I have attempted to identify who the real “agent” (MERSCORP calls it a “nominee”) is in the mortgage loan security instruments.  The term used in MERS-related paperwork is “Electronic Agent”.  There is only ONE “Electronic Agent” named in the back-office documents that virtually all foreclosure defense attorneys never get to see … and it’s NOT MERS.  I personally asked for those documents when writing discovery to MERS and MERSCORP in the Robinson case, which by the way is protected by work product privilege.   The Robinsons never got those documents because MERS and MERSCORP wouldn’t produce them.  Does this sound familiar to you?  Not if you didn’t know you had to ask for them, because they do in fact, exist. MERS just flat out want to verify its agency relationship with its members; frankly, because it doesn’t have any agency relationship with its members.  If you read the DiLibero case in Rhode Island, the Supreme Court noted that the executory contract was with MERSCORP, Inc. … or didn’t you pay attention to that part?  MERS obviously doesn’t want you to … and for good reason.

The “Electronic Agent” in the document I’m referring to is MERSCORP, Inc. (now MERSCORP Holdings, Inc.).  The Agreement I’m talking about is attached here: eta_warehouse_template_v6-mers-and-borrower4

In the foregoing document, in order to be successful in discovery, research shows you have to have a completed document between MERSCORP and the “member-user” of the MERS® System. The differences in your understanding of how these documents work appears to determine whether or not you’ll win your foreclosure case.  But that is only one element of liability here.

When I spoke of “the getaway car”, it generally means, an accomplice helped the robbers get away with the goods.  The getaway car driver generally is considered equally culpable in the crime (in this case, the theft of property by fraud) and is generally sentenced to prison, along with the perpetrators and actual actors in the scheme (the MERSCORP member-subscribers who use the MERS® System).  In criminal RICO, two or more actors are necessary, in a specific pattern of behavior, to orchestrate an act which results in an actual loss of money or property, which in this case, involved borrowers’ payments to a lender for a specific period of time, accompanied by a down payment (sometimes as much as 20% or more), in obtaining one of these so-called, MERS-originated Mortgages or Deeds of Trust.

I also have to mention identity theft here, because nowhere in any of these security instruments does it say that MERS, as an agent for the lender, should be allowed access to your social security number and other personal identifying information.  This becomes evident when anyone gets on the MERS Servicer ID Search system and wants to know who their “investor” is, which in of itself also promulgates fraud because MERSCORP, who owns the site, disclaims the site for accuracy because it’s just the driver of the getaway car.  The actual “actors” who perpetrated the fraud are the servicers who use the “System” to put whatever they want the borrower to see.  Borrowers actually believe the shit these servicers post on that site and use it in court. This is exactly what MERSCORP wants you to do.  And you fall for it?  Apparently, even the foreclosure defense attorneys don’t know what a Warehouse Lender template form is, because if they did, they’d be using it to unravel the MERS® System in front of the judge, demanding a filled-out, signed copy of the bloody form!  This is where the agency relationship was created folks … but not with MERS!  It was created with MERSCORP … as the “Electronic Agent”!  Nowhere in your security instrument does it say “MERSCORP” anywhere.  Look at all the millions of homes that were stolen using MERS and MERSCORP as the getaway car (in all those purported MERS assignments) when in fact, the corporate resolution giving then-Secretary William Hultman has never surfaced, despite being demanded to produce in discovery in the Ukpe case in New Jersey.

I spoke with former federal prosecutor Mark J. Malone by phone about this “corporate resolution”, supposedly generated in April of 1998, which he doubt even exists … which is why MERS won’t produce it.

I put those results in the OSCEOLA COUNTY FORENSIC EXAMINATION and caused them to be released to the Clerk of the Circuit Court of Osceola County, Florida on December 30, 2014.  After that Report was released to the public in 2015, there wasn’t a peep to be heard out of Reston, Virginia (where MERS and MERSCORP are headquartered), contrary to the stink they made when the Williamson County report was released.  That’s because the Osecola County Report intimated criminal RICO, “getaway car” implications for MERS and its parent.  Every one of the Board of Directors OF MERS and MERSCORP needs to be put in prison, and for well more time than what DOCX’s Lorraine Brown got.  Lorraine Brown was only an ass-puppet for Lender Processing Services, Inc., who quickly dumped DOCX to decrease its potential liability.  That’s pretty much like the CIA disavowing one of its agent’s actions when the agent is caught, to cut its ties to any potential liability down the road.  Instead, the U.S. Department of Justice, along with the Tampa FBI and the Osceola County Sheriff’s Department, whitewashed the Report by attacking the Clerk and myself.  It was more important to the Sheriff’s Department how much it cost to certify the 17 cases of evidence still in its possession, and who paid for it, rather than who was responsible for all of the criminal allegations that the Sheriff’s Department itself was involved in, because it got paid $90 per eviction, creating potential liability by extension of the fraud.  No wonder they all wanted to bury this by smearing me and the Clerk in the media.  This “issue” isn’t going to go away, because people (including attorneys and university researchers, are downloading this report and reading it in droves) are waking up to the real truths of the matter.  Giving the Sheriff’s Department in Osceola County the investigative powers regarding this Report is like the “fox guarding the henhouse”.

Also bear in mind that then-9th Circuit States Attorney, Jeff Ashton, declined to investigate the report (obviously, because it would be political suicide for him to “grow a pair”) and turned it over to the Sheriff’s Department, claiming “you have to follow the chain of command.  Meanwhile, Ashton decided that he’d rather “grow a pair”, among other things, viewing the AshleyMadison.com website on company time, which is one of the reasons he did not get re-elected in the Democratic Primary in 2016.  This means that the new 9th Circuit States Attorney, Aramis Ayala, is going to have to come out strong in favor of the people of her Circuit and do the right thing by investigating this report and convening a grand jury to investigate its contents.  If it means the Sheriff’s Department in Osceola County has to face civil litigation for its participation in eviction of all of those homeowners, so be it.

Look at your mortgage or deed of trust and tell me if you see MERSCORP listed as the “nominee”! 

Now … what is non-disclosure to you?

Were you ever told that MERSCORP was the “Electronic Agent” behind the scenes?  Of course not.  Is the MERS® System patent a matter of public record in the U. S. Patent and Trademark Office?  It sure is.  Is that constructive notice in the land records where the property is located?  Nope.  That’s because the “driver of the getaway car” had to remain the real secret here.

This is why I also believe that once the documents (notes an mortgages) were uploaded into the MERS® System, they were no longer needed; and thus, were shredded. I know that there are other contradictory opinions out there, but I relied on the 2009 Florida Mortgage Bankers Association letter to Judge Jennifer Bailey that implied that they didn’t need the original documents anymore.  Thus, I believe that there are no longer any original documents out there, just electronic copies that are reproduced for trial.  And because of UETA and eSign acts, electronic copies conveniently fit the bill … but they’re not the originals, are they?

Now the indorsements …

In the most recent decision, the Supreme Court of Hawaii, in Bank of America, N.A. v. Reyes-Toledo (see the 28-page opinion here: 2017-feb-28-hsct-pulished-opinion) opined (in part) the following:

“Bank of America has maintained that it was the holder of the Note based on the Egan Declaration and the blank indorsement on the Note. Accordingly, we consider whether the Bank produced sufficient evidence to demonstrate that it was entitled to enforce the Note as a holder of the instrument at the time that the foreclosure proceedings were commenced. The negotiation asserted by Bank of America involved negotiation by blank indorsement and transfer of possession of the Note. In contrast, a special indorsement occurs if the indorsement is made by the holder of an instrument and theindorsement identifies a person to whom it makes the instrument payable. When an instrument is specially indorsed, it becomes payable to the identified person and may be negotiated only by the indorsement of that person. Id. A blank indorsement occurs when an indorsement is made by the holder of an instrument and is not a special indorsement; in other words, a blank indorsement is not payable to an identified person.   When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer or possession alone until specially indorsed.

Here, the Note, which was attached to Bank of America’s motion for summary judgment as Exhibit A, contains two indorsements. One indorsement is a special indorsement by Countrywide Bank, FSB, to Countrywide Home Loans, Inc.  The other is a blank indorsement by Countrywide Home Loans, Inc.  Thus, because the Note was last negotiated by a blank indorsement, it may be negotiated by transfer of possession. Although Bank of America produced evidence that it possessed the blank-indorsed Note at the time it sought summary judgment, a material question of fact exists as to whether Bank of America possessed the Note, or was otherwise a holder, at the time it brought the foreclosure action. Indeed, the copy of the Note attached to the summary judgment motion does not reflect the date of the blank indorsement, and the Egan Declaration, which was made after the filing of the complaint in this case, does not indicate when the indorsement occurred. Further, there is no additional evidence in the record regarding the date of the indorsements or whether Bank of America possessed the Note at the time of the filing of the complaint. Thus, there is a material question of fact as to whether Bank of America was the holder of the Note at the time the foreclosure proceedings were commenced, which in turn raises the issue of whether Bank of America had standing to foreclose on the Property at the time it brought the foreclosure action.

Here, there is no evidence in the record, either through the Note itself, the Egan Declaration, or the other documents attached to the motion for summary judgment, showing that the blank indorsement on the Note occurred prior to the initiation of the suit. Consequently, there is a genuine issue as to whether Bank of America was entitled to foreclose when it commenced the proceeding. Thus, viewing the facts and inferences in the light most favorable to Homeowner, there is a genuine issue of material fact as to whether Bank of America held the Note at the time it filed the complaint. Accordingly, Bank of America failed to meet its burden of demonstrating that it was entitled to judgment as a matter of law, and the circuit court erred in granting Bank of America’s motion for summary judgment. For the reasons discussed, the ICA’s April 13, 2016 judgment on appeal is vacated. The circuit court’s December 9, 2014 Judgment is also vacated to the extent it grants summary judgment to Bank of America. The case is remanded to the ICA for a determination of whether the circuit court erred in dismissing Homeowner’s counterclaims.”

What the homeowners’ attorneys miss … 
The bigger picture here is the agency relationship claimed to have been possessed by MERS at the time of assignment.  Because the note indorsements are never dated, there’s no proof of when the effective date of transfer occurred.  Thus, in the foregoing instance, WHEN did Bank of America possess the Note?
Before, or after, it filed the complaint.  If the Warehouse Lender agreement says the Borrower, isn’t YOU, but the originating broker, and the interim funding lender is not the party you got the loan from,
As Bob Janes, J.D. has noted, agency must be proven by the Grantor, not the Grantee.  That means that MERS cannot self-authenticate its own agency relationships by and through its officers or through its counsel (“just take my word for it, your Honor”).  As much as you don’t trust lenders, their agents don’t fare much better if the lender lies and the agent repeats the lie in court.
I hardly ever see anyone specifically arguing UCC in court, let alone an undated indorsement and its relevant meaning when it comes to being able to enforce the note.  There is plenty of existing case law … and Hawaii just set another prime example of such.  This may mean a fight for another day, but when it comes to the recorded assignments involving MERS, one has to understand that the people in Reston, Virginia did not dot all their “i’s” and cross all their “t’s” when it came to allowing servicers to run rampant, using the MERS® System to defraud homeowners by publishing information on the MERS website to mislead homeowners, and then use contrived “Certifying Officers” (when the agency relationship of these employees, of the Servicer) is in question. We may not be able to challenge the assignment in every State, but then again, did the attorney even try to depose the robosigner and the notary to get more details.
UPDATE: 
I have had many folks present me with scenarios wherein the Allonge or “extra page” containing a blank indorsement was used at trial.  If you examine most of the case rulings, certain courts have presented us with commentary (discussion) on the subject of what constitutes a proper allonge under the Uniform Commercial Code.
EXTRA PAGES
These could involve document manufacturing, which might be sufficient to create issues of material fact necessary to avoid summary judgment and/or a motion to dismiss:  (1) what was scanned by the servicer (because that’s where we are assuming the copy of the note came from) that shows up as an extra page was either (a.) an extra page attached to the note that was separate to the note pages themselves, “created out of thin air”; (b.) an extra page attached to the note that was not a separate page from the last page of the Note, but was actually the “back side” of the note, which could be challenged as improper, as anyone could have rubber-stamped an indorsement onto the back page; or (c.) the document manufacturing by the servicer (of which we know Ocwen for example, does, because of reports indicating the same borrower’s note in 4 different stages of manufacture) in an attempt to create standing for its client lender.  The multiple creation of different notes has found its way into certain proceedings, which is enough to ask: Which one is the real note?
UNNAMED ALLONGES

Most courts I’ve read up on have issued rulings specific to HOW allonges are supposed to be attached to promissory notes and WHEN they are supposed to be used.  I would suspect that if a note has an extra page with no title on it (e.g., “ALLONGE TO NOTE”) that someone inside the servicer arbitrarily chose to attach an indorsement-in-blank stamp on an extra page to imply (or give the bank’s attorneys reason to imply) that it’s an allonge, when all it is, is a sheet of white paper with an indorsement stamp on it and does not constitute and allonge because it’s not properly labeled.

The other problem with allonges is that commonly, the space under the Borrower’s signature is supposed to be “filled up” with stamps BEFORE extra pages are being used.  When there is a whole page of room for indorsement stamps, followed by an extra page (properly labeled or not) reeks of document manufacturing.  In any case, there should be a specific objection made on the record … or someone needs to go back and research what constitutes a proper allonge.
DOCUMENT EXAMINATION

I know of at least 3 document examiners across the U. S. that can show up in court and testify as to whether a note is “original” or not.  I have to ask myself WHY lenders wait until the last minute to show up with the “original note” for the judge.  In one case in New Jersey, the bank’s law firm showed up (via a cover lawyer and not the lawyer who filed the foreclosure complaint) with a “faxed copy” of the note, claiming that it was the original.  That was objected to, of course, but the judge bought it anyway.  That case is on appeal.  With a document examiner at the ready when and if a hearing can be scheduled (or a deposition for production of the note for examination) to vet the document properly through an examiner, might scare the bank from bringing it in at all … which brings me to the last point.

THE REAL KEY REASON INDORSEMENTS FAIL

Let’s assume the 424(b)(5) Prospectus has been obtained in certified form from the SEC.  I suggest using the entire prospectus because the Pooling and Servicing Agreement (“PSA”) just isn’t enough.  The information within the Prospectus ties the Borrower’s loan to an “offering” through the sales pitch, which is the Prospectus to the investors, signed under penalty of perjury under the Sarbanes-Oxley Act.  The PSA may contain the section, “Assignment of the Mortgage Loans” under § 2.01; however, the PSA does not make up the WHOLE of the document it is contained within, the Prospectus.

If there are 3 true sales, including transfer from the Depositor to the Trust, as prescribed by the governing regulations of the Trust under § 2.01, shown within the entire Prospectus, in the portion known as the PSA, then where in the chain of indorsements is the endorsement to the Depositor and from the Depositor to the Trust?  The PSA is only a portion of the entire “picture”.  Without the framework of the Prospectus to back it up, your evidence can be challenged by the bank’s attorneys.  Oh, believe me, they had this whole thing figured out before the issues with REMICs ever surfaced in Court.  No judge wants to read a 300+ page document.  Someone has to.

SECOND UPDATE: 

In continuing the pattern of misbehavior, a most recent case out of Florida’s Fourth District Court of Appeals shows us multiple indorsements (albeit undated) present an entirely different issue as to standing.  When a bank proffers more than one note and the indorsements are different, this provides us with more ammunition to rebuff its advances that it has standing to proceed against you in a foreclosure case, as demonstrated below, in a single-page ruling:

Carty v. Bank of America, NA, Fla: Dist. Court of Appeals, 4th Dist. 2017 – Google Scholar

It’s not that we haven’t explored this avenue in previous posts.  It’s just that the courts are now just starting to recognize that our arguments really do have merit!

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Filed under Chain of Title Education, Debt Collection and Foreclosures, Op-Ed Piece

POINT – COUNTERPOINT: SECURITIZATION FAILURE EXPLAINED

“JANE … YOU IGNORANT SLUT!”

(As exclaimed by Dan Akroyd to Jane Curtin on Saturday Night Live …)

Sorry … I had to do that because you can’t say that to opposing counsel in foreclosure court … as much as you’d like to!  Still, I’m not an attorney, I can’t render legal advice, but I have been listed on at least one attorney’s “expert witness list” for upcoming trials! 

My blood boils when I’m consulting at a foreclosure trial and I hear the bank’s attorney claim that the borrower has nothing to do with the PSA because I know damned well that the borrower (nor his counsel) has a comeback that they can waylay on the bank’s attorney in point-counterpoint fashion, which is why I went with the opener that I did.

The bank’s attorney doesn’t want the borrower opening up the subject of securitization failure, because in so doing, the REMIC finds itself without standing to foreclose.  End of story … because the last attempt is always (when Fannie Mae and Freddie Mac aren’t involved) the use of MERS (through servicer fraud) “assigning” a note a mortgage years later into a REMIC trust. Securitization failure may look obvious on paper (what’s recorded in the land records) but it cannot account for the path the note didn’t travel.

The last trial I attended, I saw the bank’s attorney “step in it”.  You could hear her tiny little heels squish in the pile of dung she just sunk into asking the expert witness (who understands securitization) about the “closing date”, then suddenly realizing that she opened Pandora’s Box.  Sadly, the foreclosure defense attorneys need to climb on board with this thought process, as elaborate as it might be.  I’m going demonstrably put it into as easy a graphic as I can, using various scenarios (“submitted for your approval”, as the Twilight Zone‘s Rod Serling would say from the grave). You have to educate the judge!  You have to!  I don’t care if the other side jumps up and down with objections, you have to keep on keeping on.

FEW ATTORNEYS REALLY “GET IT”

First, let me share a pdf with you, written by (in my book) one of the most brilliant attorneys on record:

charlies-wallshein_securitization-fail-part-one-001

The foregoing even has “affirmative defenses” included in this paper, if you know what you’re looking for.  Thanks to Charlie, I used a chunk of his explanation and diatribe in a Texas Rule 736 motion I drafted for use by counsel, which, when coupled with a Rule 12 motion by the attorney (a motion demanding to know who the law firm was representing in its Application to foreclose), the law firm “non-suited” the foreclosure case (made it go away)!

I shall further elaborate, as I do in chain of title assessments where the last party to allegedly have the note and mortgage transferred to them is the REMIC … years after the fact.  The borrowers and their attorneys focus on the Pooling and Servicing Agreement and miss the whole enchilada completely.  It’s not just the PSA we’re talking about here folks!  It’s the entire “sales pitch” … I’m talking about the 424(b)(5) prospectus (and none other than).

The PSA does NOT contain your loan number!  The prospectus contains your loan number!

The prospectus contains well more of the governing regulations than the PSA, all neatly signed under penalty of perjury under the Sarbanes-Oxley Act!   When the bank’s attorney says the Borrower has nothing to do with the Assignment, why then are you stumped?  Why can’t your attorney object?  It can’t be because of ignorance, right?

However, just because your loan number is listed within the prospectus doesn’t mean that your loan is actually in the pool (or made the pool before the cut-off date).  Look at it in the simplest of terms:

  1. Why do lenders use the MERS® System?  

The lenders use the MERS® System as a means to register and securitize mortgage notes within the secondary markets.  However, before the note (and its accompanying electronic paperwork) can be traded (transferred, sold, resold, multiple times over), it has to be digitally uploaded into the MERS® System, which was created for the purposes of electronically transferring the note!  

This is why (when you look at your loan on the MERS® Servicer ID page, the loan reads “ACTIVE”.   That means, it’s “actively” being transferred (potentially multiple times over) from one entity to another while the Servicer’s name remains constant.  When you see the word “INACTIVE”, it means the loan is no longer being traded, most likely because it is NON-PERFORMING!  Who could get away with selling non-performing loans?  Only in the securities market can you get away with that!  This goes back to the late Judge Arthur Schack in the HSBC v. Taher case, which was reversed and assigned to another judge, because the powers that be (the Appellate Department) said Schack went too far (in vetting the truth about robosigning using parties claiming to be officers of MERS). So, as long as the note doesn’t end up in its “final resting place” (as claimed by REMICs in millions of foreclosures), we have an “ACTIVE” note trading within the MERS® System.

2. The servicers who subscribe to the MERS® System purposefully abuse it!

The MERS® System, as I have previously noted in other posts, as well as in the OSCEOLA COUNTY FORENSIC EXAMINATION, allows servicers and their minions and subordinates within their default divisions or their contracted third-party document mills, to “manufacture” standing by creating assignments out of thin air, utilizing the name Mortgage Electronic Registration Systems, Inc., accompanied by what is proclaimed an “official title”, with only flimsy, non-notarized proclamations by William Hultman or his “successors” within MERSCORP Holdings, Inc. potentially attached to the pleadings as a means of “verification” of the use of the title by the “nominee” (who also thinks it’s a beneficiary, which it’s not).

Regardless of their “signing authority” or other Limited Power of Attorney proof of anything (as Limited Powers of Attorney can be falsely created to reinforce a claim by the REMIC that certain servicers are covered to do exercise certain powers under the power of attorney), there is nothing in the MERS Rules of Membership that forces the users of the MERS® System to “play by the rules”.  In fact, all of the users of the MERS® System have to “indemnify” MERS and its parent of any liability in connection with the creation of these documents, which means it’s “open season” in the fraud department in the creation of these documents.

   3. Parties outside of the MERS® System are allowed to participate with the servicers in creating the documents employing the use of the MERS® System! 

During the Osceola County Forensic Examination, my team discovered (in hundreds of assignments) the use a law firm in the creation of the assignments.  Many times, the assignment itself contained the words, “Prepared by:”, with either the name of the law firm, a law firm attorney or a non-lawyer working for the law firm.  My take here is that this is where you have RICO issues because the servicer, a law firm, a notary and multiple employees of both, are tasked with the creation of the document.  We are not just talking civil RICO issues here, but also criminal RICO, because the document is generally created under the direction of the law firm handling the foreclosure (in mortgage states), or in the alternative, a document processing company (e.g. LPS, CoreLogic, etc.) being involved in engineering the “proper parties” onto a piece of paper that is going to be relied upon in court to foreclose on the property.  The law firm handling the foreclosure will then rely on an assignment that it was involved in creating to steal the home, knowing full well that the assignment contains multiple misrepresentations which are not provable because the assignments clearly show the note and mortgage were transferred into the REMIC years after the Cut-off Date!

This is why I intend to write a follow-up paperback aptly titled, “How To Screw MERS!” (or something like that), to explain how to circumvent the MERS®System in your dealings in real estate (part of your due diligence before you buy a piece of property using a “MERS Member”, which is false, because the alleged “MERS Members” aren’t really “members”; they’re user-subscribers of the MERS® System, through the use of an executory contract with MERSCORP Holdings, Inc. (which is nowhere to be found on your note, your security instrument or the assignment).

4. The “Electronic Tracking Agreement – Warehouse Lender” clearly shows who the “players” are … and MERSCORP Holdings, Inc. is one of them!

If you look at the attached: eta_warehouse_template_v6-mers-and-borrower4, you will see what I am describing here, as to who the “electronic agent” really is. Is this disclosed to you at closing?  Hi there boys and girls, can you say “Truth-in-Lending Act violations right out of the gate?” … sure you can!  (playing on Mr. Rogers’ voice).

Do you see where your “name” is inserted as to “Borrower”?   Didn’t think so.  That’s because you’re not the Borrower, the originating lender or mortgage broker (like that pesky “Rocket Mortgage” and other digital online services that make it so easy to “get approved in minutes” for a mortgage loan).

Notice in the third paragraph where it says, “the Borrower is obligated to pledge the Mortgage Loans to the Lender”?  Notice the term used “Loans” is in the plural?  That’s because the “Borrower” in this agreement is the originating mortgage broker/lender and the “Lender” in this agreement is the “Interim Funding Lender” (like Countrywide, WaMu, IndyMac, etc.).  Look who the “Electronic Agent” is:  MERSCORP Holdings, Inc.!   What is an agent?  (hint: a nominee)

Then why isn’t MERSCORP Holdings, Inc. (the parent of MERS, the entity with all the money) plainly stated on your loan paperwork, including your Note? Where is the Truth-in-Lending Act when you need it regarding non-disclosure of the real “truth”.  It was hidden from you at closing?  That might even bring about suspicion for a RESPA violation as well.

Notice within Paragraph 4 of this agreement where it says that the “Lender and the Borrower desire to have certain Mortgage Loans registered on the MERS® System (defined below) such that the mortgagee of record under each Mortgage (defined below) shall be identified as MERS;”   Did you ever sign a paper like this at closing?   I’ll save you the time looking for it.  You didn’t.  That’s because the “Borrower” in this agreement, involving the placement of your loan into the MERS® System IS NOT YOU!  Did you agree to that?   Didn’t think so.  But it sure the hell explains how your loan got “registered” on the MERS® System, doesn’t it?

This was all created to be part of the securitization process.  This is why the entire process is flawed … and why it needs to be eliminated … and why the parties who created it need to be in prison!  The MERS®System is the platform through which the RICO acts were committed.  Indemnification or not, the platform is there … and it’s knowingly being abused.

YOUR NAME AND ORIGINAL LOAN NUMBER IS ON THE ASSIGNMENT!

This begs the question: How can you NOT be involved?  The assignment is talking about your very loan and mortgage (or deed of trust) being conveyed by the employees of the mortgage loan servicer (who can’t get the originating lender to do it because it’s more than likely defunct), whose employees create the document out of thin air, under the instruction from: (a.) one of the major title companies; (b.) the foreclosure mill attorneys involved in the litigation; and (c.) a third-party document mill tasked by the servicer to keep the transaction at arms length to avoid suspicion.  In any case, the document is a fraud.  They know it. And you know it.  But the judges don’t know it because no one knows how to tell the judge a thing or two about the real aspects of securitization because they know that 99% of these assignments are fraudulent and by ruling against the bank on securitization failure, they would open up a “three-ring circus” in their courtroom while jeopardizing their political futures.

The servicer uses its own “loan number” which generally does not match yours.  But when the bogus assignment is drafted (and many times backdated for a purpose) by the servicer’s employees or that of the law firm or third-party document mill, your original loan number and name is on the assignment.  Why not simply ask the judge to take your name off that document (since you’re not involved in it) and we’ll call it a day?   You know how that will end up, right?

You first have to object to the attorney’s comment that you’re not involved in the PSA, because technically, the PSA talks in general about operations within the REMIC itself.  If you’re going to enter the PSA as evidence, you’re shortchanging yourself and your case.  What you should be entering is the entire 424(b)(5) prospectus.  It still costs $4.00 a copy from sec.gov on their forms page.  They have a contract with United Parcel Service to ship it to you at no charge.  You pay $4.00.  Get the whole prospectus.  The front end of the prospectus is what contains the cut-off and closing date, not the PSA.  Have you ever noticed that, or did you just take someone’s word for it?

exhibit-9_occ-asset-securitization-comptrollers-handbook

Notice the foregoing “Page 8” and where it came from … the 1997 Comptroller’s Handbook issued by the Office of the Comptroller of the Currency.  This handbook was issued before MERS Version 3 came into being.  Notice how the first paragraph below the diagram talks about the Borrower being a party to the securitzation chain?   Do you understand why?  Because in simple fashion, in order to make the chain work (the whole system), the Borrower’s payments facilitate the income stream to the investors, who received non-recourse bonds on the Closing Date (or Start-up Date, according to IRS terminology) of the REMIC.

That is, unless securitization failure occurred at the Start-up Date.  This begs the use of an expert witness at trial to can testify as to the facts, followed by the use of depositions of the parties creating the document (the assignment) to reinforce the fraud being plied on the court.

Actually, securitization failure occurred BEFORE that!  It occurred at the Cut-off Date!

It couldn’t have happened because after the note and mortgage was uploaded into the MERS® System database (owned by now-MERSCORP Holdings, Inc.), I believe the original paperwork was no longer needed and was shredded.  My forensic examiners and I have heard this on more than one occasion, right out of the mouths of the bankers!  Thus, when the Borrower went into default: (a.) the servicer handling the loan dummied up an assignment, knowing already that it didn’t have the original loan; (b.) the servicer went into the MERS® System and downloaded the “uploaded electronic copy” and printed it out and took it into court (after adding a bunch of other “allonges”, “indorsements” to the note to try to tie the chain of title together with the chain of custody of the note.

Let me be clear here!  I do not believe that the allonges and the indorsements were completely added until AFTER the original note was retrieved from MERS. The latest article by Neil Garfield, which contains a statement: “I have obtained confirmation from a large bank vendor (Visionet Systems, Inc.) that it rectifies “lost notes” by reapplying the “signature images” upon stored copies. –Bill Paatalo, December 10, 2016.” goes to the core of the following scenario:

My wife and I attended a trial in Fort Myers, Florida where Bill Paatalo was admitted as an “expert witness”.  I went for two reasons.  First, I wanted to see what kind of questions the bank’s attorney and the judge were going to ask Bill about his expertise and the facts of the case; and second, we had dinner with Bill after that to further discuss the case, which ended up without a Final Judgment being issued that day (in court) because the judge wanted more education, in the form of trial briefs by the attorneys, which were due yesterday (I have not seen the brief).

This clearly also shows that the Notes were, at one time (as I suspected) electronic copies.  And riddle me this (as the Riddler said to Batman) … where do you think Visionet Systems, Inc. got the copy of the note?  Visionet is NOT a user of the MERS® System (check for yourself like I did) and therefore, they had to get the note from somewhere (more than likely the servicer, who IS a user of the MERS® System).  This now begs the deposition of someone at Visionet Systems, Inc. to verify this chicanery.

There are at least two cases supporting this conclusion! 

If you’ll simply Google a pdf of “In re Saldivar” (Texas) and “Glaski v. Bank of America” (California), you can see from these two cases that the court finally recognized that if the note and mortgage (or deed of trust) weren’t assigned until years after the Cut-off Date”, there is no verifiable evidence of WHEN or IF the note and security instrument actually “made it into the pool of loans” within the REMIC trust! This is what Bill Paatalo testified to at trial in Fort Myers.  When attacked by the bank’s attorney on the possibility that the note and mortgage made the cut-off date and that the assignment was strictly a memorialization of that fact, Paatalo responded to the “fact” that the assignment itself shows the date of the assignment being two years after the REMIC closed; thus, there is no possibility that the governing rules of the REMIC were complied with.  I am referring to the entire 424(b)(5) prospectus here, NOT just the PSA!

The OCC clearly contemplated that the Borrowers were the parties signing the notes and security instruments, which contained the provision (in paragraph 19 or 20, depending on which long form security instrument was employed at that time) that “the note, or a partial interest in the note” may be sold or transferred. It says nothing about the parties involved in that transaction, the “boss of the note” at foreclosure proceedings, or securitization of the loan.

Not only is the chain of title screwed up (because the right hand doesn’t know what the left hand is doing), certain parties came in contact with each other to “dummy up” paperwork to steal the house.  It’s that plain and simple.

That my friends, is a short-form explanation of the formula for securitization failure in roughly 3200 words, despite the fact I’m not an attorney nor do I render legal advice.  Share this with everyone because the life you save may be that of someone you don’t know that desperately needs to view this educational post!

BTW: For those of you wanting a progress report on the new FDCPA book I’m working on … I’ve about 40 pages to go!  I’m trying to get it done by the end of the year!  It contains some real damning information every “consumer” should know about, from foreclosures, to credit cards and car loans to student loans … all of which have been securitized … including relevant case law to back up the education I provide in this book! 

Dave Krieger, Clouded Titles

 

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Filed under Chain of Title Education, Op-Ed Piece

WELLS FARGO, CARRINGTON MORTGAGE SERVICES GET A $5,000,000+ BEAT DOWN BY HOUSTON, TEXAS JURY!

The issues discussed in this post are for educational research purposes only and does not constitute the rendering of legal advice.

It was a glorious day for David and Mary Ellen Wolf when a Houston, Texas jury awarded them in excess of $5-million in damages in their case against Wells Fargo Bank, N.A. and Carrington Mortgage Services.  See the Charging Instrument here: Wolf v Wells Fargo Bank et al_2011-36476_Nov. 6, 2015_Charge of the Court

At issue for the jury to determine was whether the Assignment of Lien was valid under Texas Law … you be the judge: Wolf-Transfer-of-Lien-NCMC-to-WF-10.15.2009

If you’ll notice the robosigned signature of Tom Croft, claiming to have some authority vested in him by the then-defunct New Century Mortgage Corporation, it contains rubber stamped “markers” on the document and is overwhelmingly TOO LATE to be transferred into the Carrington Mortgage Loan Trust, Series 2006-NC3, whose cut-off date was August 1, 2006, as shown on page 9 of the pooling and servicing agreement (“PSA”), attached here: SEC Info – Carrington Mortgage Loan Trust, Series 2006-NC3 – ‘424B5’ on 8:8:06.

If you’ve never read a PSA, you’ll find it in an easy-to-read format on SECINFO.COM.  Once you get inside of the trust pool (all you have to do is conduct a search using the series number of your trust, e.g. “2006-NC3”) information, look up the “424(b)(5) prospectus” information.  The PSA is buried inside of that document, as attached above in the Wolf case.  Some of you may have had the pleasure of navigating this site already, so please forgive my indulgence on behalf of those who have not done so.

The reason these documents have to be filed with the trust by the Cut-Off Date is because on the Closing Date, which is the start-up date of the REMIC trust, the bond certificates are issued by the Trustee of the Trust to the certificate holders (the investors who put their money into the REMIC that allegedly funded your mortgage loan).  For those of you who do not know, “REMIC” is an acronym for Real Estate Mortgage Investment Conduit.

All documents, including the Assignment or Transfer of Lien, and the Note, have to be conveyed BY THE CUT-OFF DATE (which in this case was August 1, 2006) into the trust pool in order to be accepted into the REMIC and receive tax-exempt status, according to the Internal Revenue Code and through congressional mandates found in 17 CFR 210, 228, 229, et seq.  This CFR reference (Code of Federal Regulations) is a 127-page document that was given legal effect when in was published in the Federal Register.  You can find it online simply by Googling it and asking for it in “pdf” format.  This is one of the items we will be sharing with you in more detail in the upcoming online COTA Workshop, being published in sections, on the CloudedTitles.com website.  I highly encourage you to sign up for it if you haven’t attend a live COTA Workshop in the past.

There are many of you reading this blog for the first time that may not even know that DK Consultants LLC has held workshops of this nature since May of 2012.  We no longer hold them in live fashion because of the out-of-pocket expenses for the attendees for coming to these 3-day events.  However, the Quiet Title Workshops have been fine-tuned to a 2-day event (Saturday and Sunday), to allow you to fly or drive into an area and stay a night or two if that’s your choosing (and your schedule can accommodate it).  We are finalizing the 2016 Quiet Title Workshop schedule for the following cities and months:

  1. Redondo Beach, California (Crowne Plaza Hotel & Marina), January 30-31, 2016
  2. Tampa Florida, Tampa Airport Marriott Hotel, April 2-3, 2016
  3. Chicago, Illinois, May, 2016 (location TBA soon)
  4. Las Vegas, Nevada, July, 2016 (location TBA soon)
  5. Baltimore, Maryland, September, 2016 (location TBA soon)

Now that you have the tentative scheduling, you can make plans to attend one or more of these workshops. Al West and I will be lecturing at these events.  You get to ask questions about quiet title actions and learn how they are processed.  Subscribe to these posts for more updated information as it becomes available.

Sum and Substance of the Transfer of Lien

The problem with the transfer of the lien in the Wolf case is that the jury determined the transfer was fraudulent at the time the document was executed and the parties executing it knew it was fraudulent when they executed it.

This is one of the key issues portrayed in the OSCEOLA COUNTY FORENSIC EXAMINATION conducted by DK Consultants LLC, released to the Clerk of the Circuit Court on December 30, 2014.  You will also notice that the law firm’s name is mentioned on the Transfer of Lien as well.  This was done for a purpose: to create standing for the named entity (the “assignee”) to foreclose on the Wolf’s property.  Whenever a law firm’s name is mentioned on any assignment, you can bet: (1) the law firm had a hand in drafting the assignment; (2) the law firm had a hand in directing the execution of the assignment; and (3) the law firm had a hand in causing the assignment to be recorded in the land records where the property is located. This would make the law firm criminally liable under the RICO statutes.  There are over two dozen law firms mentioned in the Forensic Examination from Osceola County, Florida that are soon-to-be-scrutinized by the Justice Department, who the report was recently referred to by Congressman Alan Grayson’s office.

One of the other patterns demonstrated in the Forensic Examination was that it was customary to see an assignment “pop up” shortly BEFORE or AFTER the foreclosure sale or judicial foreclosure action was commenced in order to facilitate “phony standing” for the foreclosing party.  Ask yourself, “Why did it take them so long to issue the assignment, if they knew exactly when the transfer of the note and mortgage took place”?  Because the parties executing the assignment DID NOT KNOW WHEN the actual transfer occurred!  How can you testify to something you have no knowledge of?  I think there’s enough case law establishing that.  Give me any state, I’ll find you a case that says that you can’t testify to something you have no knowledge of.  This could be construed as hearsay, which is inadmissable in court in virtually all instances.

So the sum and substance is (for your direct benefit) … always check the real property records at or near the time of foreclosure to see WHAT “pops up”.  You may have similar issues as the Wolf’s.  They were lucky in the civil realm that this case went before the jury. You can bet Wells Fargo will appeal the verdict as will Carrington.  I still want to see criminal indictments handed down for the fraudulent filings because there are criminal penal codes in place for that very reason. I’ll bet you do too!

 

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

WHY QUIET TITLE ACTIONS WILL BECOME COMMONPLACE IN THE FUTURE

The author of this post (Dave Krieger) is not an attorney.  Try to find an attorney near you that does quiet title actions as successfully as Al West (I want proof of the winning cases) … and I’ll let him TEACH the bloody workshop and pay his/her airfare and expenses to boot!  I’m not handing out legal advice today (nor will I ever, because the state bars, who are technically NOT affiliated with any Supreme Court jurisdiction, would love for me to stop talking about this subject, permanently), so if you need an attorney to assist you in a quiet title action, be prepared to do some serious digging to find one that knows their stuff.  I’ll tell you why in a minute … 

Since the beginning of this country, county land records were designed because America needed some sort of “fundamental order” in its keeping of land ownership records.   And in this case, I’m talking about the proper ones, not the ones influenced by the behaviors of today’s legislatures (at the whims of the banking cartels).  One of the many concerns within the realm of real property law, which I have had the pleasure of studying to the umteenth degree, much to the chagrin of others, began with my own experiences, which I write about in Clouded Titles, now in its final Mayday Edition version.

I expressly designed this work as an educational product because I found America lacking in the basic principals of real estate ownership that they may have either NOT learned in high school or college, or in the alternative, conveniently forgot about as part of the Age of Entitlement generations.  There are two issues here that I will discuss further, the key reasons for WHY quiet title actions should become part of your legal research and education to benefit your future and the future of America, if there ever is to be one.

There are a lot of Patriot-type folks out there that will disagree with my theories and my educational principles regarding quiet title, but I can tell you, I’ve done them … and they work.  Without quiet title, burps and hiccups in any given chain of title will render it impaired and thus, unmarketable.  You can disregard your belief that the “county” you live in has any authority, but let me tell you, you are in the minority of all of the registered voters who have faith in their county government, until their government proves them otherwise.  If you want change, then run for public office and change things!  First, have some respect for our current system, because it’s the only thing we have in place that stands in the pendulum path of civility versus anarchy.  Those of you out there who think you can still get title in allodium … keep dreaming.  We’re way past that point.

The first issue I will discuss here is WHY most attorneys DON’T WANT TO do quiet title actions!

Attorneys who specialize in real property law should completely understand the principals of quieting title, including pleadings and procedure, which Al West and I share in the workshops I host around the country.  Many attorneys ignore quiet title, because it represents (for the most part in a majority of the cases) a finite end to issues involving superior title to property.  This may also result in what is known as a “lien stripping” of a promissory note (which of course is what the judges suspect), which is then rendered unsecured because the quiet title action may end up causing the complete removal of the mortgage or deed of trust, if the parties who show up can’t prove they have superior title.  I said nothing about the Note here because the having a lien vis a vis a promissory note does not, in of itself, constitute superior title, unless the the Note has terms within it wherein the borrower gives up title to the property until the lien is retired in full.  Title theory states operate that way.  Lien theory states however, grant an “interest” in the property by what I call a “unilateral adhesion contract”, which is a one-way ticket to hell!  It’s called a mortgage or deed of trust.  Of late (within the last 15 years), these two documents have been tainted by a process called MERS (an acronym for Mortgage Electronic Registration Systems, Inc.), whose parent, MERSCORP (in whatever incorporated form it happens to be in at any given point in time) runs the obfuscation game for Fannie Mae and Freddie Mac and the rest of its members.

Most attorneys refuse to study the convoluted ways of the MERS® System, which I believe was started up to hide the behaviors of Fannie Mae and Freddie Mac (the two Examined Members talked about in the April 13, 2011 Consent Order involving MERS and its parent) as they involve the chain of title (but also to the financial benefit of other users of the database).  Thus, attorneys do NOT know what my network of attorneys know.  Thus, they render inconsistent and improper pleadings (IMHO).  Thus, anyone who attends my workshops will probably come away with more information than attorneys learn about quieting title than they learned about in the whole of their law school.  Since they don’t teach MERS in law school (to the degree we do in our workshops and educational materials), you can bet most attorneys don’t want to be bothered with it when they can be making a monthly income off the backs of desperate homeowners who want to stay in their homes (sadly, most of them have no game plan for the future).

Attorneys who specialize in foreclosure defense have quickly learned (as I have surmised here) HOW TO stall a foreclosure.  During that time, they bill their clients with a monthly fee that similarly equates to their monthly mortgage payments.  This is the first wave of foreclosure fraud.  Many attorneys want their clients to file bankruptcy to stop a foreclosure sale, yet seemingly, they ignore the 10-year “stain” on their clients’ credit reports as a result of what?  Delaying the inevitable?  According to the Office of the Comptroller of the Currency (O.C.C.; who coddles MERS, because they’re all “in on it” together, in whatever sort of conspiracy you want to call it) has plainly stated on its website that bankruptcy is simply just a “stall tactic” (for the inevitable).  I would have to ask these folks at the OCC, “Whose side are you on here?”  All of what has taken place in the shaping of legislation has obviously been instigated by the banks.  It may be time to vote out those in the electorate who aren’t on “your side” when it comes to property ownership and maintaining proper real property records in the county courthouse.  The continuation of this current way of doing things illustrates my point on the need for quieting title even more.

Attorneys would rather have their monthly annuities coming in than seeing a finite end to their client’s case involving a quiet title action.  There is no guarantee that getting your title quieted will stop some bank (or MERS, as it unsuccessfully did in the Groves case in Texas) from pursuing you down the road, but the “law of the case” seems to make things a bit easier.  In short however, why have a “finite end” to things in favor of a monthly paycheck?   For example, if a law firm has 10 attorneys doing foreclosure defense and each one brings in a retainer (for a single client) of $5,000 and then bills them for two years at $1,000 a month; if each attorney had 50 clients to “stall” for, the gross income to that firm would be $2,500,000 in retainers and $12,000,000 in monthly fees.  That’s $14,500,000 for those of you doing the math.  Such a business model it is.  This is why it’s so hard to find an attorney to do quiet title work.  Another major reason attorneys don’t favor doing quiet title actions is that these attorneys simply don’t want to be chastised and ridiculed by a judiciary that appears heavily vested in the very securities that are screwing America!

Equally important however, which attorneys overlook, is HOW and WHY quiet title actions are necessary if our current “system” of property ownership is to be salvaged.  Attorneys have to educate themselves FIRST, then they can educate the judges, who will then understand WHY quiet title actions are necessary.  For the time being, most judges I’ve read up on think of quiet title as just another assertion for why a homeowner wants a “free house” when this is so far from the truth. It’s unfair and totally biased to ignore the fundamental basics of quieting title; thus, we will discuss it here in further detail.

Now let’s look at the other side of the coin … the second issue in this think piece … 

From all the research my collective “network” has done, quiet title actions will become fundamentally commonplace because of what the MERS business model has done to contribute to the corruption of any chain of title it’s involved with.  I will NOT buy a property that has MERS anywhere in the chain of title! I suggest you take my comment to heart here, especially if you’re an investor.  This can only be overcome by (again, my suggestion and not legal advice, in the “if it were me” scenario) stipulation to judgment in the quieting of title prior to the deal being closed.  That means that MERS would have to be notified, so it too can “sign off” on what rights it thinks it (or its member users) may have (which I humbly disagree that any exist other than what’s in the contract, which are feebly explained by language a third grader can’t understand, let alone a future homeowner who doesn’t ask questions before signing papers at closing).  I would love to debate Bill Beckmann about how successful his “business model” really is, because the only thing I see here is how it benefits the users of his “system” and NOT homeowners. I’ll explain in more detail in a minute …

Most title attorneys will NOT admit that Schedule B circumvents the payment of 99% of any claims against a title policy.  They wouldn’t want you to know that because the title insurance industry is a racket unto itself that I’m not going to go into detail about in this particular article.  I will however, discuss it in finite detail when the book THE QUIET TITLE WAR MANUAL is finally published.  One needs to have all of his “A” game on before venturing into the shark-infested waters of what I term the quasi in rem quiet title realm.   Title attorneys further do NOT care about MERS, because users of the MERS® System do NOT record proper assignments anyway, and most title companies (“the racket”) have subscribed to the fact that they can now “write around the defects in title” simply because MERS exists somewhere in the chain.  Schedule B is the key here.  Read it and weep, preferably BEFORE you buy a worthless homeowners’ indemnity policy.

I don’t give a damn about the insurability of a property, but the “system” of the way things are done around here seems to cater to that modus operandi.  I care more about the marketability of property and what a prudent and reasonable person would do when confronted with a piece of property that is loaded with chain of title issues. Hopefully RUN … in the opposite direction, far away from the deal!  I realize that this may leave millions of blighted homes out there unoccupied, but it’s about damned time we sent Congress and our state legislatures a message: Either come up with a game plan to keep owners in “the game”, or watch your system turn into total chaos!  You let the banks “dangle the carrot” and you looked the other way when you repealed the Glass-Steagall Act and then end result was a system of modified securitization that has now turned this entire country’s court system into a game of reckless indulgences by foreclosure mill law firms who are making beaucoup bucks off the banks to keep the “game” in play in courts across the country, as long as it can, in the end, take the property, by whatever means (including the manufacture of phony documents for the purposes of litigation).

This is another reason why the banks are trying to actively change the Uniform Commercial Code (the “UCC”).  This is the last resort of any viable defense in both foreclosure and quiet title actions.  The banks know this full well.  If they can totally tip the scales in their favor, borrowing money will leave a bad taste in people’s mouths once they see others getting screwed.  Wait a minute!  That’s already happening here!

Instead of being honest about how they make money, the major banks have corrupted the securitization scheme in favor of side bets, called credit default swaps.  The borrowers seem to never have any of this payout money applied to their bottom line, but the banks who started it are reaping big benefits.  Securitization DOES INDEED affect the chain of title, because the Pooling and Servicing Agreements (“PSAs”), are never adhered to.  These are the governing regulations established by Congress under 17 CFR 210, 228, 229 et seq.   Conduct a full audit of one of these securitized trusts and you’ll see why investors are screaming that the failure rate of these REMICs is 100%! 

This is another reason that MERS was created: to facilitate securitization.  This beta model has done more harm than good despite what MERS tells its members.  If you look at their policies and procedures, you can plainly see that MERS® System users violate MERS’ policies with wanton impunity.  This is another reason WHY quiet title actions are fundamentally necessary.  This is another reason why the laws need to be changed to allow property owners to finitely challenge any piece of paper that is publicly recorded having to do with their chains of title.  This is all part of quieting title and THIS is what MERS and the banks DON’T WANT.  But … it gets better! 

If MERS and its parent had their way, all quiet title actions and their respective state statutes that mandate quiet title would be declared unconstitutional and your case discarded! 

MERS does NOT care about your rights to property.  MERS and its parent, MERSCORP (the for-profit corporation that is going to find itself embroiled in more lawsuits in the future, I predict, when the real truth comes out) caused to be filed an amended pleading (in the California federal case in Robinson) that asserted that the California Quiet Title Statutes were unconstitutional!  Can you believe the arrogance?  Is MERS now better and more powerful than the state legislatures?   Have we elected a pack of wimps that can’t stand up to them?  You be the judge here, because you have the power to change things!   State statutes regarding the quieting of title were created for a purpose … not to be ignored by MERS!  MERS has some sort of liability somewhere in this equation (facilitating breach of contract possibly) and someday it will be called upon to ante up.

MERS seems to forget that there is language contained within the contracts in which it’s named as a nominee and beneficiary or mortgagee (yet these terms are NOT specifically defined within the mortgage or deed of trust, so they become conveniently arguable as to their meaning in court) that specifically gives homeowners a duty-bound, contractual right to defend title to their property.  This is why every State in the Union is now faced with conflicting rulings when MERS is a party to any action.  That is fact, not my opinion.  Further, MERS doesn’t get to cause a breach in contracts it’s named in, in the name of squelching a quiet title action!  You should take out your mortgage or deed of trust and read the first few pages, especially the “seisin mechanism”.  That part of the contract is your contractual duty to defend title.  If you don’t, YOU’RE IN BREACH OF CONTRACT!  YOU DIDN’T ABIDE BY THAT SECTION OF THE CONTRACT YOU SIGNED! THE LENDER SHOULD BE SUING YOU FOR BREACH, BUT THEY DON’T.  WHY? BECAUSE THEY’VE ALREADY BEEN PAID OFF BY CREDIT DEFAULT SWAP MONEY! (The money, by the way, that wasn’t applied to your “bottom line” balance as typically referenced in Section 23 of your long-form mortgages and deeds of trust.)

What?  You didn’t know all of this when you signed the damned note and mortgage/deed of trust at closing?   Well … welcome to the real world!

As long as there is a mortgage or deed of trust out there with this language in it, you have a contractual duty to quiet title!  Maybe the lenders and Fannie and Freddie will remove the seisin mechanism completely from their security instruments at the insistence of MERSCORP, and will change the language to read:

“BORROWER COVENANTS that Borrower may not actually own the property they just bought, or in the alternative, have just purchased a property full of holes that title companies will not insure. Borrower agrees that they are stuck with what they bought and further agree that any rights to litigate to correct title are hereby waived completely.”

When it comes to the foregoing language, the courts seemingly treat Borrowers as if they have no rights at all … because … they owe somebody!   Title doesn’t matter … because the judge said so!  Read some of the appellate case law on quiet title and you will see where appeals have been reversed and remanded to allow attorneys for property owners to amend their complaints to quiet title, because they didn’t get them right in the first place!   Then you will see WHY attorneys need to be educated on the subject! It’s a shame you have to appeal quiet title actions because foreclosure mills denounce this practice, ignoring the contractual right (which to me wreaks of tortious interference with contractual relations).  Again, judges seemingly ignore this too!

Further, there is established case law regarding the quieting of title.  We have compiled quite a bit of it for your research, which is on the 16GB USB flash drive every attendee gets as part of their research materials for attending these classes.  Sorry, you have to attend the classes.  We do NOT sell the flash drives a la carte with no explanation behind it as to how we came up with this research!

Still confused, this is what we have the upcoming quiet title workshop in Chicago for.  Visit the Clouded Titles website for details.  The Chicago event offers three different workshops on chain of title assessments (COTA), quiet title actions and a session on the Uniform Commercial Code, state-specific, taught by attorney Robert M. Janes, who I deem the UCC “guru” in America.   You and/or your attorney needs to especially attend THAT workshop if you’re going to attend any of the events we’re offering here!  This is the educational series you want to drop the dime on!  This is the only event remaining this year with this kind of discount offering. We will not be doing another event like this in 2015, maybe ever!  That’s right, I’m making a pitch here for your benefit!

When we start addressing the real issues involving quiet title, then American homeowners will become more responsible and productive citizens!

I should hold a contest to see how many folks out there have incorporated themselves as one of the defunct lenders of the past, or MERS, for that matter.  There seems to be a lot of brouhaha about those scenarios as well.  I will discuss two relevant cases in the future regarding this point (involving MERS and America’s Wholesale Lender; “AWL”; anyone with an AWL mortgage or deed of trust will want to pay attention to this upcoming article!)

As a sidenote … if the courts don’t want continuous and voluminous foreclosure cases wreaking havoc on their dockets, perhaps they should consider the positive nature of quieting title when a case dismissal occurs.  Why should the bank get a “second bite at the apple”?

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

ROBO WITNESSES STILL HEAVILY ACTIVE IN THE JUDICIAL FORECLOSURE PROCESS!

The author of this blog post was recently retained to consult on a case in Palm Beach County, Florida.  This commentary are his express opinions and do not constitute legal advice.  If you cannot understand this material or need legal clarification, please consult with an attorney who is competent to litigate in such matters.  

While most of those living in non-judicial foreclosure states never see these individuals, states where the lender has to file a lawsuit and serve notice on the Borrower in order to complete a mortgage foreclosure brings to the forefront what I have been trying to advocate in my educational materials I disseminate in my enhanced Chain of Title Assessment (COTA) Workshops.  There is a COTA Workshop coming to Chicago, June 4-6, 2015.  One of more attorneys will be attending this workshop and will be answering questions about my procedures and how they are utilized in defending foreclosures, whether you are in a judicial or non-judicial foreclosure state.  Look for details to be posted soon on the Clouded Titles website.

On Monday, March 9, 2015, I was in court observing the goings-on in multiple foreclosure cases in two separate courtrooms in Palm Beach County.  I thought I would share a few items of interest for the readers of this blog site:

1. There are still very few homeowners that actually show up at trial.  This allows bank witness testimony to go unchallenged and thus, uncontroverted.  It is sad to see bank witnesses (I will refer to them as robo-witnesses here because that is exactly HOW they were behaving) complicit in helping the alleged bank get away with this sort of “legalized theft”.

2. The afternoon court session, which began shortly after 1:30 p.m. in Courtroom 4A, was littered with these robo-liars.  Several of them were accompanied by foreclosure mill attorneys (who were probably out of law school no more than a few years), who basically got up before the judge, who allowed each attorney to tag team these witnesses in tandem to all of their foreclosure cases (at least a dozen that I could count), where the attorney read from a list of questions AFTER the judge swore the witness in.  The Q&A was 90-mile-an-hour case specific.  The robo-witness was clearly “coached” to read figures from a list provided directly to them by counsel to quote from, which no objection from the absentee homeowner.  The judge even joked at one point that maybe he could get an attorney who wouldn’t talk so fast.

3. Our specific case was reserved for the very end, so there were very few people in the courtroom (the judge, two clerks and a woman bailiff) besides the litigants. The trial, which included a robo-witness (Cynthia Stevens, who had testified at numerous events earlier that day, unchallenged), lasted nearly 3-1/2 hours (2:40-6 p.m.).  The judge took the whole matter under advisement.

4. During the trial, I took notes (so I could compare them to the nearly 200-page trial transcript), counting 46 multiple objections by Palm Beach County foreclosure defense attorney Lorelei Fiala (who herself used to work for a foreclosure mill but was fired for refusing to alter sworn documents within verified complaints being used in foreclosure cases).  Most of these objections came at the expense of the robo-witness on issues involving hearsay, lack of foundation and lack of capacity.  The witness was clearly flustered during some points of her testimony, especially when Fiala forced her to give a “NO” answer to Steven’s lack of actual knowledge of certain statements she was making at the behest of U. S. Bank’s attorney.  The judge actually had to force Stevens on more than one occasion to answer YES or NO.   In this author’s opinion, Fiala certainly came into the fight with a lot of her “A Game”, which is something you don’t see a lot of.

5. During the morning session, I observed a very well-dressed foreclosure defense attorney toss out a few objections to witness testimony, but failed to cross-examine the witness when given the opportunity to do so.  You might as well have thrown your hard-earned money away on an attorney who won’t go the mile like Fiala did during the afternoon session.

6. During the nearly 3-1/2 hour trial, the judge overruled BOTH sides and denied the bank’s renewed motion to correct a scrivener’s error involving additional information that its counsel wanted added to the Plaintiff’s name.  In sum and substance, for 5 years, Trust A was the Plaintiff.  Then right before trial, Trust B comes in and wants to be substituted into the case, which was granted.  Trust B’s counsel however, had a difficult time proving HOW it got the note and mortgage and the defense certainly wasn’t going to give them an easy victory, which in the end, was highly doubtful.

7. During closing arguments, defense counsel proffered the following flow chart, which the defendant homeowner (one of my learned students, myself and Fiala) worked on into the wee hours of that morning before trial.  I offer that to you for your perusal and consideration     Flow Chart – PAUL v.4 FINAL  in .pdf format.

8. It is interesting to note also in this trial that the Pooling and Servicing Agreements (PSAs) of BOTH Trust A and Trust B were offered and accepted into evidence by the Court.  This allowed both sides to argue its contents.  The Plaintiff bank of course offered Trust B’s PSA into evidence.  Defense counsel offered Trust A’s PSA into evidence to countermove the Closing Dates on BOTH trusts, which were BOTH in 2005.  The bank’s attorney maintained her poker face during almost the entire event.  Virtually all of her objections were overruled during the presentation of the defense attorney’s case.

9. Bank’s counsel tried to avoid the Assignments of Mortgage which were done in 2009 and 2013.  Defense counsel got both of them admitted as exhibits and in the end, it was the homeowner who took the stand and impeached the bank’s counsel with testimony that BOTH Assignments of Mortgage never made the Closing Date … and neither did their Allonges, which appeared to be “conveniently manufactured”, to give U. S. Bank standing to be an alleged Plaintiff.  The judge also examined the alleged photocopied “Allonges” to the Note, which were NOT attached in the original complaint five years earlier.  This really added to the bank’s demise as to credible testimony.

10. In the end, I did not see the bank proving what it needed to elementally prove its case.  The Flow Chart came in handy for defense counsel because it clearly showed the judge where (in simple terms), we were coming from.  This is a case-maker, because we framed our entire case for appeal, as it is highly likely in most cases that go down in Florida courts, that a judge will give a house to a homeowner.  I found it also interesting the way Fiala postured her closing remarks about, “We’re not asking for a free house, Your Honor … we want this case dismissed so they can re-file and present their case properly, not like they have here today!” We already had read the judge’s mind and “headed that common concept off at the pass” (as it were).

11. MOST IMPORTANTLY, the bank’s attorney admitted:

(a.) That it knew the title to the property was screwed up! AND

(b.) That the Servicer created the documents that were being used at trial!

Both of those admissions made defense counsel’s jaw drop (as did the rest of us)!   It is significant to note that this is what I have been teaching in my COTA Workshops … “If I can’t convey, neither can they!”   This goes to the fact that the bank, through its document manufacturing mills, littered the chain of title with so much crap that there’s no way they could legitimately SELL this property at a foreclosure sale without clearing title.  Good luck with that, if you don’t have standing.

Had the homeowner NOT taken the COTA Workshop, the level of presentation would have been less obvious in the flow chart.  The flow chart however, is simple, and says it all in one page.  JPMorgan Chase can’t have two “bites at the same apple” when transferring a note.

I can’t wait to see the trial transcript.  It will be even more interesting when we finally get a ruling to see WHAT the judge perceived as being the real triable issues of fact here.  I found this case to be significant for Florida for the following reasons:

(a.) It incorporated the pooling and servicing agreements from two separately-registered SEC trusts.

(b.) Both trusts’ Closing Dates came into play (like Glaski), citing the recent 4th DCA-released Murray v. HSBC Bank USA N.A. and McLean v. JPMorgan Chase Bank, N.A. cases.

(c.) There are very few cases in which the PSAs are even allowed to be discussed at trial because banks’ attorneys always object to the homeowner having the right to challenge them.  We used the PSA to assert that the Note, as well as the supporting documentation, never made either trust pools’ Closing Date.

(d.) We also used the PSA to defeat the robo-witnesses’ testimony that she reviewed the PSA to see if the note was in it, yet later backpedaled when challenged, that she wasn’t an attorney and couldn’t interpret the PSA and refused to answer further questions about her actual knowledge of the PSA.  This doesn’t look good for robo-witnesses.

(e.) There are very few cases in Florida that ever get close to arguing internal issues within a PSA.  Defense counsel presented (and got entered into evidence) a  copy of the Loan Remittance Report for January of 2015, obtained publicly from Wells Fargo Bank, N.A. (as Master Servicer of the trust)’s website, wherein the homeowner’s loan COULD NOT BE FOUND!   That doesn’t say much for note ownership, does it?

More significantly, an appeal will follow if the judge grants the bank Summary Judgment of Foreclosure.  Countersuits are also likely.  That’s why you use a court reporter!  Again, I can safely attest that the COTA Workshop paid off here, even if you don’t end up becoming a COTA Preparer.

Now … you be the judge.

 

 

 

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Filed under Breaking News, Chain of Title Education