CLASS ACTION: PA COUNTY RECORDERS WIN RIGHT TO SUE MERS FOR FEES

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Consult with Neil F Garfield, MBA. JD

MORE REASONS TO DENY AND DISCOVER

The usual stuff from MERS: We’re right and everyone else is wrong. Except that not so many people are taking them at their word. The MERS “Business Model” was simply a vehicle to hide a simple PONZI scheme. This class action lawsuit aims to show that you cannot pick up one end of the stick without picking up the other. If MERS wants to take the position that the transfers on their books are valid, which they must or there wouldn’t be any foreclosures, then they must pay the transfer taxes and recording fees required under Pennsylvania law. It is pretty simple, and the order allowing the class action to proceed is basically a final decision waiting to be made final.

The case also goes forward on unjust enrichment, declaratory and injunctive relief. Now comes the decision where the MERS entity must decide whether and when to assert that MERS shouldn’t be sued because it was only acting as agent of the members. If they do that then they are admitting they were acting for a undisclosed principal at the closing of the loan, a clear violation of the Truth in Lending Act. If they don’t do that they get a judgment that puts them out of business and which will be executed and enforced against those who organized MERS — Title companies, banks, servicers included — when  it comes out that this is indeed the case during discovery.

It is difficult to conjure up a scenario where this case won’t be settled. The facts are devastating to the banks and servicers and title companies. They can’t go to trial. And THAT is the same strategy I am pushing lawyers to use in individual cases in DENY AND DISCOVER.

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25 Responses

  1. There have been a few publicized cases of dup claims including, i think, allegations from two parties of holding an orig note! – brought up on this or other like sites – been a year or two and i don’t remember the ‘explanations’ or much else.

  2. that if the S & A’s were properly executed, but the loans weren’t actually delivered

    yes i see that——the delivery is slippery—trail of custody proof even more important—-title follows custody for bearer to be sure

    and now i know MS point too

    WAMU sold midwest assets to AHMSI in july 2004—-my app was in at WAMU—but stopped and redid with AHM before closing date Spt 2004

    Note supposedly held by AHM 2004-4 served by AHMSI for years–but more pops up saying WAMU was original holder–and BoA has my debt on their internal records as well as BNY global trust?????/

    HMMM–i could not think how BoA could get a claim—-gross fraud is how–double booking though our local office or the whole midwest?

  3. I’m not saying the indenture v sale was necessarily willful. i’m just saying that if the S & A’s were properly executed, but the loans weren’t actually delivered, 9-203 is the best they can do to grab ANY
    compliance with art 9 and there’s little if any doubt in my mind these
    notes are regulated by 9.
    good point about bearer note and control. very good point. I’m still of a mind the notes were scanned, became e-notes of a sort, complete with the original controller-key provided by the schmoe who owned the e-registry – gee, who was that?- for the ‘authoritative’ copy. Electronic commerce and e-notes etc are in the UCC – I didn’t dream it up. What I don’t know is what is protocol for the hard copy of the note.

    Appears to be a done deal – Obama re-elected.

  4. the only way custody of real live ART 3 original notes could make it would seeminly be if the note were sent one way—–the file destroyed after scan

    some real safe-keeping operation for docs????

    trillions there—bearer?

    who ?
    hopefully not sec

  5. OK –I am getting a clearer vision of your objective –establish a trail of RE assignments per the PSA —verified by the PSA representations and any other transactions–chain of title per contract representations. they should be able to make a jeopardy assessment from such info. The trick is gotta do it one by one unless impose a sampling protocol on a servicer —sample–calc liability per a detail analysis as you are doing—extrapolate to the entire population of that servicer in that jurisdiction. A sale of the note requires a taxable recorded assignment of mortgage—a pledge might not.

    I think post securitization deposits in a trust of pledged notes might be a sham–its hard to quite understand in a commercial context why one would pledge mortgage notes—-except in connection with working capital loans. But yes that is where there is also opportunity for a flat duplication of notes held in inventory and as investment —either “pledged” as security for the working capital loan.

    this is where AHM group got in trouble 4th quarter 2004—a swath of 4th quareter 2004 loans originated were reported as sold to trusts –presumably including ahm 2004-4—–when in fact the notes were pledged to support working capital

    thats described in detail in AHM investment co 2008 4th quarter 8K
    accts stated that there was a failure in internal controls in the area of keeping track when notes were sold and/or held……..so we actually had scheduled loans [theoretically] per art 9 —-also scheduled or described by date of origination etc to pledge to a bank-lender

    hmmm—when the notes are held in the same warehouse under two categories: the ones on the nort end temporarily pledged –the south end permanently stored at cost of servicer—the process of depending on transfer by possession gets interesting–if banks have debtor in posseesion under contract—maybe lease a corner

    i would not think one could control notes that were held in bearer form

    ms correct–they shoulv burnt the notes——but they shuld never contract to deliver the original—implying a lot about about the debtors future risk of liability to multiple claims

    how do you calculate such damages? how does one complete a loan application?

    if you ignore the claim—borrow money—and then default because they come out of the fog with a 2nd note–you have non-admissable proof [hearsay unauthenticated] —and they force you to bk and then attach your pension distributions under a plan–cant help kids go to college

    you must explain to collector every nickle you withdraw—give the collector of note B control over your life—servitude for life for most of us older victims—not one note but two or three—they will move to amend bk laws to help us–itll get accidentally derailed and end up imposing a means test at low hurdle

    one has to keep in mind the house note is just a device to go after retirement savings–1st the house–then the rest–even your life insurance

    i dont think anybody elected tonite will even try to alter this planned outcome

  6. Someone, I thought, asked about joining the PA CR lawsuit.
    That person would be interested in reading the order on the mtn to dismiss (mostly denied dismissal). See p. 14, but if you’re in Pa, you might want to read the whole thing. It’s interesting.

    PA imo still has a problem which thank God will only be resolved by discovery. Assignments must be recorded in PA, but there is no
    evidence assignments were done to require recordation. In fact, we know they weren’t done. This, to me, means the county recorder can recover recording fees on existing assignments, but not ones that should have been done (to establish interest) but weren’t.

    The best use of this suit in my opinion is to get discovery. If the county
    recorder’s goal is money, she will settle rather than wade thru what she’d have to to determine the amt due. She may agree that each loan in the course of this sick m.o. should have been assigned three times, for instance, and take the number of MERS mtgs recorded x 3 x filing fees and call it a day. Or if it’s a good day for us, she will see
    right away there were no assgts done to record and realize the best use of the suit is in fact discovery.
    One thing distinguishable in the case, perhaps, from others like it is PA law mandating recordation. Not all states do. Two noteworthy footnotes from the case:

    “(fn)6 None of the parties challenge the settled rule in Pennsylvania, a title theory state, that assignments of mortgages are conveyances of interests in land within the meaning of the recording statute. See Pines v. Farrell, 577 Pa. 564, 575-76, 579, 848 A.2d 94 (2004).

    (fn) 7 Of course, the fact that 21 Pa. Stat. § 351 makes the recording of conveyances compulsory does not affect the well-settled principle that unrecorded conveyances can still validly transfer interests in land between the parties to the conveyance. ~ , Fiore v. Fiore, 405 Pa. 303, 306, 174 A.2d 858 (1961)”.

    I’m happy to report that these fn’s support contentions I have been
    making for some time now.

    Acc to this order, the Dallas Co. recorder’s case is still on, with the banksters’ mtn to dismiss partly granted and party denied. Haven’t read it.

  7. Indeed—no Mortgage Loan Schedules or Mortgage Loan Purchase Agreements…only “intent”.

  8. @jG

    as you will see from my preceeding post in the other string—-and MS comments—they sold the mortgage notes 2-3 times to multiple trusts—and if there was no trust schedule filed contemporaneously, they could have put the same note in different loan groups in the same trust–nobody was even looking to see if the sponsors were making the SEC filings correcly–completely—much less checking for duplications—all in the servicers hands to sort out or conceal—-which they did until 2007—then Wilbur Ross bought the collection rights to a whole bunch of these unfiled trusts—AHM –Option one and more—-he hired insiders at former AHMSI to run his new operation: new AHMSI

    so there would be no surprises

    so bottom line is a lot of duplicate mortgages thanks to our sleepy watchdog SEC

    So there have got to be “missing” gaps—-is this number that was tossed out the gap that fed reserve is nailing down–i dont know–but i do know that homeowners will be called upon to pay not one note but 2-3—-until their money runs out and they race to bk court

    BK court is where all defaulting homeowners are to go—supposed to go——then nobody cares how many times the note was sold and how many claimants are lined up for payment on the same document

    it is truly obscene–the dimensions are oas obscene as the causes–and all roads after 3 years of investigation that i have done lead back to SEC

    SEC permitted it on the front end–literally with waivers of electronically filed loan schedules —-then permitted it by not demanding the manually filed list in fact be filed—then in 2009 actively covering up the failures to file

    and nobody —nobody in govt cares–the AHM con-artists got a slap on the wrist for misrepresenting the condition of the products to their shareholder circa 2007—lickety split get out of jail free card—-then nobody questions what SEC was doing–who was getting paid off

    Nobody—

    What did happen is that i lost my govt job after bringing up the SEC failures—-and the LPS DOCX doc mill used to overcome the shortgage of notes–or complete lack–whichever the case may be

    at present i do not know how many claimants are going to come forward—as so as one is settled out another can arise to take his place–through the same damn collector atty–thats how bad it is

    at front of line is BNY via AHMSI

    behind them is BOA —with Deutsche in there too

    UCC states if i suspect it–i must join all of them–or be liable for payment of one only

    the more you know the worse off you are under UCC

  9. I mean of course, ENRAGED is obsessed—not ANON! ;)

    Get a life, enraged—you are embarassing yourself.

  10. @enraged has lost it. I am in touch with ANON. She is obsessed with me for some reason. Very odd.

  11. npv – what 135 billion went missing?
    **************

    http://www.jdsupra.com/legalnews/development-of-nationwide-mortgage-datab-68497/

    What manner of major ill is this? I think we need to know. Enraged, finding out is right up your alley…….???

  12. @NPV

    I dont want to be nasty or disrespectful to you—but Im from the midwest. And I worked in DC. I pretty much assume that any NY politician is crooked—-thats not in issue—nor are public and private expectations of what is actually going to happen to those homes–hence WSJ–even the AUSIES know.

    Everybody knows—do the New Yorkers think we dont? Ha thats funny–corruption in NYC –noooo ha ha ha—i havent had a good laugh today—thanks

    But what the guv messed up–was saying it—so now hell be charged as a fool for letting it happen—itll doom him—-itll be the biggest seize and strip operation ever observed–papers will revel in it—they will be shipping “nearly new fixutres and appliances out by the semi-load for months—preservers will have so much to do initially —they will ignore each other —but later they will be fighting over which family’s recycling operation gets salvage

  13. DCB, unfortunately our Governor in NY knows far well the corruption that occurs daily. He in fact was the head mutt at HUD when 135 billion went missing. Not only does he know what is going on, he is so heavily involved with aiding the corruption, they are thinking of running him next time after the Obama mutt defeats the Romney Mutt, and or you who knows what tomorrow brings types, this election is over and Obama has already won.

    I’m so sure – I will bet the banks house /residual rights on this win.

  14. Didn’t Martha Coakley actually decide to drop everything in the wake of that infamous “settlement”?

  15. Just pointing out O’Brien is one of the few leaders. Not an attack.
    He worked very hard to clean up his deed office, with the help of the AG and she went after them filing multiple suits.

    Frustrated yes, with the “actual conspiracy” to steal everything from the American Citizens…next is social security, the KOCH brothers are already trying. Imagine privatizing Social Security; OMG and giving to these Wall Street thugs?

    You may not believe me, but the reason we are bailing out; buying 40 Billion of MBS’ each month is to protect the Federal Pensions…these cats are very dangerous and evil people…they must be “neutralized”…we are all getting poorer and less free by the day!

  16. “O’Brien in MA gave it to the AG …spoke with both of them personally. I have their complaints and pleadings…wrong Enraged.”

    Your point being…? I have never addressed you. Really don’t know what your problem is…

    Oh! I forget… a bunch of frustrated hyenas with a pack mentality! Of course they’re gonna be snide! They don’t know how to be any other way.

  17. O’Brien in MA gave it to the AG …spoke with both of them personally. I have their complaints and pleadings…wrong Enraged.

  18. @ALL

    New York governor states;
    “In 2009 the Banks got a reprieve and a sort of second chance, with conditions. I am calling for the same good faith gesture to be given to homeowners affected by Superstorm Sandy. If you own or rent a home already and the electrical crisis now will put at risk your life the State of New York should open up to you a chosen foreclosed home to temporarily live in at least through the new year. There should be conditions. While the families live there, they will upkeep the property as best they can and will leave it in a better or similar condition as to when they arrived.”

    This would be humorous if it were not so ugly–demonstrating how little understanding this governor has of a truly black heart of the seizure industry. those houses may appear to be held by big banks–trustees etc as REO—-but truth is that they are in possession and control of resale outfits over which the banks have no control.

    Preservers and flippers control the properties–and are busy making applications for insurance for water damage and an unexpected leg up—freeze damage. the loss of electricity due to weather will trigger casualty insurance losses for the vacant homes and homes that are in foreclosure but were not yet vacant.

    Sandy was a huge windfall for the foreclosure community. They can get cash out in terms of insurance checks faster than ordinary homeowners will. The preservers can then in plain sight strip the vacant homes already REO—and best of all—-quickly go in and seize houses that they were awaiting evictions for. The storm evicted the people for them—as I write the preservers are working overtime hauling out anthing of value and changing locks—ripping pipes and wiring out. The WSJ today stated that New York area salvage yards expecte a flood of business next week from people bringing in stripped copper pipes and wires. Where is that coming from i wonder?

    The seizure industry as well as state and local authorities will attribute the dramatic increase in vacant gutted homes to weather—thus qualifying for fed grants for demolition. Sad–

    what the governor and mayors should do is issue executive orders prohibiting stripping and seizure of temporaily vacant homes—declare marshall law —shoot such theives in the act—but they wont—-and the salvage yards will fill with pipes and wire–the used appliance stores and used building materials operators will fill—-as the seizures become rampant–the stripping pandemic. Pawn shops will fill with stolen goods taken by preservers under color of law.

    the good thing for speculators already sitting with properties is that virtually ALL of the recently seized properties will be stripped to the bone and eligible only for demolition. The inventory of clean REO and homes for sale inder short-sale deals will jump in value as demand for occupiable rentals increases. too bad for those who lose their homes though—escalating rental prices—no goods—no clothes—nothing.

  19. The mortgage relief act is not going to expire. The banks need this act because there is no income to borrowers, because the loan (lol) is paid off by counter-party, there is no loss to the alleged lender, who will send you the 1099, so they like it because they write down the losses on assets that had no loss, or are not assets at all on the balance sheet.!

    Can’t have both ends of the candle – i.e. if someone is taking a loss on the loan – write-off etc.. than the party receiving benefit of the writeoff would have to take the forgiveness as income.

    Since the guy writing it off owns the note, and is paid by the master servicer after hitting swap proceeds, the guy taking the write-off did not lose anything, and subsequently, could not 1099 you.

    Unless we have this Bush Scam on the way out the door!

    The illusion still makes it appear that actual money was used and actual notes and mortgages were conveyed to investors.

    P.S. DeMarco is a crumb and I hope he suffers and all the bad things in the world happen to him and nobody else but him.

  20. Something just crossed my mind…

    Not one homeowner owing on his mortgage, whether current or not in his payments, will receive money from his homeowner insurance. Since the banks is always named as a payee, along with the borrower and since the check is made out to both, it is going to be a horrible ordeal for homeowners trying to move back and pay for the repairs… banks will hold off on the money, use it to pay for the mortgage, put it in a suspense account, etc. (provided, of course, that the insurer doesn’t first disclaim coverage, which is still a very distinct possibility since a great majority of policies exclude coverage for “acts of God”…)

    The new wave of lawsuits is going to kill any chance of recovery that part of the country could have hoped for.

  21. Let’s hope the people on the receiving end will tell them to F..Off –

    I personally would not accept anything from these Wall Street ‘donations’ – it would be like accepting blood money from those who have committed suicide like Carla Balderrama from PHH Mortgage Corporation’s fraudulent foreclosure – or the couple in CA – every state has a victim or more from the Wall Street massacre – to accept their so-called donations is to sadly accept a dollar or two that was made from a tainted foreclosure – someone’s home and life is behind that dollar donation – don’t take it NY and NJ . . . at least ask them where that money came from – we cannot be fighting on this side and accept cloaked ‘charity’ – just say ‘no’ – any one of us will gladly donate whatever we can – where’s Occupy when you need a strong voice of resistance??

    By the way, with this PA-MERS case – why wouldn’t the residents of the counties who were ‘affected’ by MERS since after all it is their mortgages that are the premise of the MERS’ mess be allowed to enjoin in these cases – move to become a party on behalf of each county as a homeowner representing all other homeowners in each of the 67 counties – it is about our mortgages and documents anyhow – so why wouldn’t we the owners and affected be named or at least enjoined as the real parties in interest being affected – we are the real victims – it’s not just about fees – its the reason for dodging in the first place – fees was merely a byproduct of the overall conduct – thus homeowners in each county should be equally if not moreso – invited and encouraged to enjoin in this case – which would allow for ease of discovery and documents if homeowners were a party to the case . . . just saying…

  22. Wall Street Turns to Hurricane Relief
    By WILLIAM ALDEN

    People in places like the Rockaways in Queens are trying to rebuild their lives without power.

    As many in the New York area cope with the effects of Hurricane Sandy, Wall Street employees are looking to assist the recovery.

    Financial firms have promised various forms of aid, including donations, loans and waived fees. Goldman Sachs on Friday became the latest firm to pitch in, pledging $10 million in loans and donations.

    Many New Yorkers spent the weekend volunteering, and a hedge fund manager, Roy Niederhoffer, organized a group of friends to truck out supplies, according to The New York Times.

    Other banks are donating money as well. JPMorgan Chase, the country’s biggest bank, said last week that it would give up to $5 million for storm relief. The disaster “literally hits home,” Jamie Dimon, JPMorgan’s chief executive, said in a statement.

    http://dealbook.nytimes.com/2012/11/05/wall-street-turns-to-hurricane-relief/

    That’s the least they can do, after having pocketed billions of OUR money… In fact, they could do a hell of a lot better!

  23. Everybody is scrambling to keep a piece of the action… and somehow, I am not impressed by the excuse the NAR is giving. Seriously, it has nothing to do with us, homeowners, and everything to do with them. They couldn’t care less about us.

    Tampa Realtor Call to Action – Forgiven Mortgage Debt Tax Exemption Expiring

    Mortgage Forgiveness Debt Relief Act
    November 5, 2012
    By: Ira Joshua Parker
    Subscribe

    The National Association of Realtors (NAR) has put out a “CALL TO ACTION” regarding the expiration January 1, 2013 of the Mortgage Forgiveness Debt Relief Act of 2007. Every Tampa Realtor should take a stand, voice their concern and get Congress and the President to work on this immediately after Election Day.

    The Foreclosure Relief Act expires naturally at the stroke of 11:59:59 PM December 31, 2012 which means any short sale closings, deed in lieu of foreclosure, mortgage modifications with principal forgiveness and foreclosures with waivers of deficiency, that occur (that means it closes, or is signed off by the lender) on or after January 1, 2013 will likely incur ordinary income tax on the borrower.

    The failure to act to extend the tax relief will surely increase the amount of bankruptcy filings (a bankruptcy before the forgiveness of the debt makes the forgiveness moot, since the bankruptcy wipes out or reduces the debt, therefore there is nothing to forgive, and therefore no income). Bankruptcy filings increase the likelihood of the borrower walking away from the over-leveraged home, thus continuing our economic down-turn if not extended.

    Here is a video by NAR President Moe Veissi – check it out and make your vote count!

  24. If i recall, a few recorders have filed something along those lines, including O’Brien in MA, some guy I forgot in TX and Marc Dann (I believe) in OH. As far as I know, nothing came out of any one of those… So, I’ll postpone on celebrating until I see results!

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