THE BOTTOM LINE IS THAT YOU WON’T FIND ANY MONEY, YOU WON’T FIND ANY DOCUMENTS, AND YOU WON’T FIND ANYTHING OF VALUE, TANGIBLE OR INTANGIBLE AT MERS. THERE IS NOTHING — AT THE BEGINNING, IN THE MIDDLE AND NOW AT THE END. THE WHOLE THING WAS A SHAM, THE CHILD OF SOME FLEETING THOUGHT AT THE RATING AGENCIES THAT HAD NO MERIT, THAT WAS NOT LEGAL AND COMMITTED THE PLAYERS TO FRAUDULENT ACTS AND DECEPTIVE PRACTICES FROM START TO FINISH. IN THE PROCESS THEY NOT ONLY ROBBED INVESTORS AND PENSIONERS, BORROWERS AND HOMEOWNERS, BUT EVERY PURPORTED SUCCESSOR IN INTEREST WHO THOUGHT THEY WERE GETTING CLEAR TITLE. WE CAN’T FIX SOMETHING WE WON’T ADMIT IS BROKEN. DAWN WILL BREAK, BUT WHEN?
First I commend the attorney for an outstanding job of examining the “secretary” of MERS 1, MERS 2 and MERS 3. Yes, that’s in there too. Second, note that the creation, function and structure of the MERS entities was dictated by the rating agencies who were requiring that a “bankruptcy remote” entity hold title, meaning an entity that couldn’t go bankrupt and was separate and apart from any entity that could go bankrupt. Why couldn’t they go bankrupt? Because they had no assets, liabilities, income or expenses. Specifically at no time did ANY MERS entity claim any loan as an asset.
One of the many bottom lines in this deposition is that if it’s MERS it’s securitized. But if it’s securitized it doesn’t mean that there ever was any transfer of the loan. Sound paradoxical? It’s the difference between the documentation and the actual money. The only thing anyone was actually interested in was the money. THAT is what was securitized. The investors’ own money was securitized and the receivables from borrowers were bounced around like the ball in an exhibition of the Harlem Globe-trotters. The “securitization” of mortgage backed assets was a grand illusion. It never actually happened.
The shell game here is exposed in the full light of day as well as anyone could ever hope. If MERS is in your deal, then you have irreconcilable contradictions of fact and law. That doesn’t mean you don’t owe the money to ANYONE, it means that the holder of your mortgage or the beneficiary under your deed of trust, is an impenetrable cloud that is not subject to any authority or documentation that would satisfy any rule of evidence. The obligation that arose when you borrowed the money advanced by investors was NOT reflected in your closing documents. Thus the presumption that the note is evidence of the obligation and that the mortgage or deed of trust is incident to the note is false. Therefore the right of sale or foreclosure is not enforceable upon a declaration of default by an entity that was NOT a party to the loan transaction between the investor and the borrower.
In a nutshell, the obligation is legally unsecured in every MERS-related transaction. The note was a remote instrument that did NOT reflect the terms of the transaction with the Lender (investor) who received an entirely different set of documents. The loan is not only bankruptcy remote, it is also security remote. The rating agencies, the investment bankers and other intermediaries in the securitization chain were too cute by half. The attempt to foreclose based upon documentation that on its face misrepresented the real parties in interest is a fraud. The REAL parties are those who at this moment are sitting with money out of pocket. Once any entity attempts to invoke the power of sale or files a foreclosure action the game of musical chairs stops — and the chairs need to be filled with entities that are equitable and legal owners of the loan and the property.
Those real parties have thus far elected NOT to file actions for equitable liens and thus establish a perfected security interest. That failure has created a void. The problem is that most courts are filling the void with presumptions that are improper and invalid. A borrower should not be presumed to owe nothing — just as an alleged “holder” should not be presumed to be owed anything. Anyone seeking to claim a right of sale on a residence that involved MERS should be dismissed out of court or stopped by the Court unless and until they can plead and prove a credible story about how they were injured in the transaction. The way the Courts are handling this now, is the equivalent of letting an “eye witness” claim damages from a car crash he heard about from a friend.
When this story unfolds a little further, a prediction I made three years ago will come to pass. There will be a head-slapping moment when suddenly title carriers, attorneys, judges and administrative agencies and clerks suddenly realize that the monster created on Wall Street has its equivalent in the public records of counties across the nation. I doubt if more than 6-7% of all the foreclosures in the past 10 years have resulted in clear title delivered to anyone. And the only corrective instrument can come from the original owner. That homeowner is sitting in the catbird seat and doesn’t know it. Millions of people who THINK they have lost their homes still own them and if anyone wants a signature from those people to clear title, they are going to be required to pay dearly, which is at it should be.
Eventually the purse gets returned to the victim from whom it was snatched.