Unconscionable and Negligent Conduct in Loan Modification Practices

JOIN US EVERY THURSDAY AT 6PM Eastern time on The Neil Garfield Show. We will discuss the Stenberger decision and other important developments affecting consumers, borrowers and banks. We had 561 listeners so far who were on the air with us or who downloaded the show. Thank you — that is a good start for our first show. And thank you Patrick Giunta, Esq. (Broward County Attorney) as our first guest. For more information call 954-495-9867.

In the case of Wane v. Loan Corp. the 11th Circuit struck down the borrower’s attempt to rescind. The reasoning in that case had to do with whether the originator was the real lender. I think, based upon my review of that and other cases, that the facts were not totally known and perhaps could have been and then included in the pleading. It is one thing to say that you don’t think the originator actually paid for the loan. It is quite another to say that a third party did actually pay for the loan and failed to get the note and mortgage or deed of trust executed properly to protect the real source of funds. In order to do that you might need the copy of the wire transfer receipt and wire transfer instructions and potentially a forensic report showing the path of “securitization” which probably never happened.

The importance of the Steinberger decision (see prior post) is that it reverts back to simple doctrines of law rather the complexity and resistance in the courts to apply the clear wording in the Truth in Lending Act. The act says that any statement indicating the desire to rescind within the time limits set forth in the statute is sufficient to nullify the mortgage or deed of trust by operation of law unless the alleged creditor/lender files an action within the prescribed time limits. It is a good law and it covers a lot of the abuses that we see in the legal battleground. But Judges are refusing to apply it. And that includes Appellate courts including the 9th Circuit that wrote into the statute the requirement that the money be tendered “back to the creditor” in order for the rescission to have any legal effect.

The 9th Circuit obviously is saying the they refuse to abide by the statute. The tender back to the creditor need only be a statement that the homeowner is prepared to execute a note and mortgage in favor of the real lender. To tender the money “back” to the originator is to assume they made the loan, which ordinarily was not the case. The courts are getting educated but they are not at the point where they “get it.”

But with the Steinberger decision we can get similar results without battling the rescission issue that so far is encountering nothing but resistance. That case manifestly agrees that a borrower can challenge the authority of those who are claiming money from him or her and that if there are problems with the mortgage, the foreclosure or the modification program in which the borrower was lured into actions that caused the borrower harm, there are damages for the “lender” to pay. The recent Wells Fargo decision posted a few days ago said the same thing. The logic behind that applies to the closing as well.

So lawyers should start thinking about more basic common law doctrines and use the statutes as corroboration for the common law cause of action rather than the other way around. Predatory practices under TILA can be alleged under doctrines of unconscionability and negligence. Title issues, “real lender” issues can be attacked using common law negligence.

Remember that the common allegation of the “lenders” is that they are “holders” — not that they are holders in due course which would require them to show that they paid value for the note and that they have the right to enforce it and collect because the money is actually owed to them. The “holders” are subject to claims detailed in the Steinberger decision without reference to TILA, RESPA or any of the other claims that the courts are resisting. As holders they are subject to all claims and defenses of the borrower. And remember as well that it is a mistake to assume that the mortgage or deed of trust is governed by Article 3 of the UCC. Security instruments are only governed by Article 9 and they must be purchased for value for a party to be able to enforce them.

All of this is predicated on real facts that you can prove. So you need forensic research and analysis. The more specific you are in your allegations, the more difficult it will be for the trial court to throw your claims and defenses out of court because they are hypothetical or too speculative.

Question: who do we sue? Answer: I think the usual suspects — originator, servicers, broker dealer, etc. but also the closing agent.

78 Responses

  1. @neidermeyer – you seem to know much more than I do about the site you mention in your post. I was there – found my loans – printed the pages. I have a weird issue and wonder if you might know the answer? 2 loans in same trust but in different tiers. One loan I was told was charged off in in 2010. When I check the report for that month the loan that I was told was charged off is included in the Realized Loss Loan Detail Report-Loans with Loses during Current Period. Later in same report when the loan is listed in the Historical Modification Detail – the loan has “Loan Paid in Full” listed under Status. Question #1 Do you know if that is normal for them to sho that status for a charged off loan? I ask because I had a title issue and was in FC w/ other loan and think it is possible a claim was made on my Title Policy. This year – got a tax 1099C for cxl of debt for the loan after a lien strip motion that was granted in CH 7 – (done in GA). I just wondered if you noticed in the trust docs – do they always list “paid in full” for status for loans in trust that are charged off? It seems to me “paid in full means – paid in full” Question #2 – how does one go about asking the Title Policy company if they paid a claim on a title policy for one of our loans? Do you just call them? Would they have to tell you?

  2. “Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system.”

    Can I rest my case? If MERS is an agent, its agency is not found in the dot. It may be found elsewhere – like in the agreement where the “members contractually agree” that MERS is their common agent. But even is so, the document, if any, which creates the agency is never rendered. For courts to say it’s – agency – created in and by the dot is just insanity.

  3. Also from KC’s material:

    “MERS system serves several other purposes. It enables consumers, title companies and other real estate professionals to easily identify the current holders of registered mortgages and obtain discharges despite any transfers of the mortgages or mergers or acquisitions of the lenders and investors in interest that may otherwise make it difficult to trace ownership, if it is accurately maintained by the MERSCORP Holdings, Inc. membership. Information contained in the MERS system can help to identify possible mortgage fraud involving the identity of a prospective buyer and owner-occupancy issues. The centralized database of MERS system can also help detect property flipping schemes and purchases, again if it accurately maintained, a common criticism of the MERS system scheme.”

    1) last I heard, MERS did not stand behind the factual basis of the info
    entered into its database (disclaimed veracity)

    2) the info is entered by members (and Lord knows who else) on a
    strictly voluntary basis

    3) Some if not all the stuff input into the system requires a legal
    analysis / conclusion that so and so now owns the mortgage loan,
    particularly when it involves mergers or acquisitions.

    4) Whether or not the system, based on 1 – 3 above, catches fraud by those primarily committing it is “highly unlikely” imo.

  4. Good stuff, KC.
    “(Notice how MERS is both an agent for the original lender and then the final lender acts as an agent for MERSCORP Holdings, Inc.; this is why MERS’ critics frequently attack it as “two-faced.”)”

    This isn’t two-faced; it’s legally impossible. MERS maintains that it’s the agent of the original lender, its successors and assigns. If that’s true (which it isn’t) that makes MERS the agent of the “final lender”, also. If the “final lender” acts as the agent of MERSCorp (v MERS), the creation of the agency – without a doubt – is not to be found in the dot (but then neither is anyone’s agency with MERS). Making X your (novated) nominee and then having X make your employees its (alleged) officers is just as legally messed imo as “agent” X making employees of the principal its officers. It is legally skewed.

  5. from KC’s MERS link:

    eNote Registration $ 4.95

    Security instrument registration on the MERS® System 11.95

    Combined eNote registration on the MERS® eRegistry and
    security instrument registration on the MERS® System1 15.90

    Transfer of control—seasoned loan 2 * 2.00

    Transfer of control—flow loan 2 – 0 –

    Transfer of location – 0 –

    Transfer of delegatee – 0 –

    Transfer to proprietary registry 2.00

    eNote conversion to paper 10.00

    eNote deactivation – 0 –

    Assumption or modification – 0 –

    Transaction performed on behalf of member ** 100.00

    *I take it this is transfer of control of the authoritative copy of the digital note.

    ** I take it this is the charge to have someone’s employee
    execute an assignment in MERS’ name (after paying the 25.00 or so fee for a Hultman “resolution”. If that’s what this 100.00 is, MERS made a lot of dough off the robo-signing (and yet?) At any rate, even if it isn’t, MERS charges SOMEthing on info and belief every time someone executes an assgt in MERS’ name.

  6. Me too, KC

  7. http://www.mersinc.org/join-mers/mers-residential

    .. Should I Join?

    Special Membership: Third Party Originators (TPO)

    Are you a lender who originates loans where Mortgage Electronic Registration Systems, Inc. (MERS) is the original mortgagee, but your investor or lender purchases the loans at the closing table and performs the transactions on the MERS® System? Then you are eligible to become a TPO member.
    ◾Download the TPO membership application.
    ◾Download the Agreement Investor Letter

  8. http://www.mersinc.org/about-us/member-search

    Click here for MERS member search.

    Who is Missing?

  9. MERSCORP Holdings, Inc. Officers

    Bill Beckmann
    President and CEO
    Bill Beckmann is President and CEO of MERSCORP Holdings, Inc. and its subsidiary, Mortgage Electronic Registration Systems, Inc.

    Dan McLaughlin
    Executive Vice President
    Dan McLaughlin serves as Executive Vice President of MERSCORP Holdings, Inc.

    Bryan Kanefield
    Senior Vice President and Chief Risk Officer
    Bryan Kanefield serves as MERSCORP Holdings’ Senior Vice President and Chief Risk Officer.

    Sharon Horstkamp
    Senior Vice President, Associate Secretary and General Counsel
    Sharon McGann Horstkamp serves as Senior Vice President, Associate Secretary and General Counsel for MERSCORP Holdings, Inc.

    Juanita Russell
    Senior Vice President, Treasurer and Chief Financial Officer
    Juanita Russell serves as Senior Vice President, Treasurer and Chief Financial Officer for MERSCORP Holdings, Inc.

    Helina Dancer
    Vice President, Human Resources
    Helina Dancer serves as Vice President of Human Resources for MERSCORP Holdings, Inc.

    Freddy Feliz
    Vice President, Information Systems
    Freddy Feliz serves as a Vice President of Information Systems for MERSCORP Holdings, Inc.

    William C. Hultman
    Vice President, Legislative Affairs
    Bill Hultman serves as Vice President of Legislative Affairs for MERSCORP Holdings, Inc.

    Janis L. Smith
    Vice President, Corporate Communications
    Janis Smith serves as Vice President for Corporate Communications for MERSCORP Holdings, Inc.

    Gretchen Strub
    Vice President, Internal Audit
    Gretchen Strub serves as Vice President of Internal Audit for MERSCORP Holdings, Inc.

    Mark Roberge
    Vice President, Customer Group
    Mark Roberge serves as Vice President for the Customer Group of MERSCORP Holdings, Inc.

    Avi Marcus
    Associate Secretary and Counsel
    Avi Marcus serves as Associate Secretary and corporate counsel for MERSCORP Holdings, Inc.

    Mortgage Electronic Registration Systems, Inc. Officers

    Bill Beckmann
    President and CEO
    Bill Beckmann is President and CEO of Mortgage Electronic Registration Systems, Inc. (MERS).

    Dan McLaughlin
    Vice President
    Dan McLaughlin is Vice President of Mortgage Electronic Registration Systems, Inc. (MERS).

    Juanita Russell
    Treasurer
    Juanita Russell is the Treasurer for Mortgage Electronic Registration Systems, Inc. (MERS).

    Sharon Horstkamp
    Associate Secretary
    Sharon McGann Horstkamp serves as Associate Secretary for Mortgage Electronic Registration Systems, Inc. (MERS).

    Avi Marcus
    Associate Secretary
    Avi Marcus serves as Associate Secretary for Mortgage Electronic Registration Systems, Inc. (MERS).

    Timothy Renner
    Associate Secretary
    Tim Renner serves as Associate Secretary for Mortgage Electronic Registration Systems, Inc. (MERS

  10. Print

    Shareholders played a critical role in the development of MERSCORP Holdings, Inc., the parent company of Mortgage Electronic Registration System (MERS). Through their capital support, MERS was able to fund expenses related to development and initial start-up. The following organizations are current MERSCORP Holdings shareholders:
    ◾American Land Title Association
    ◾Bank of America
    ◾CCO Mortgage Corporation
    ◾CitiMortgage, Inc.
    ◾CRE Finance Council
    ◾CoreLogic
    ◾Corinthian Mortgage Corporation
    ◾EverHome Mortgage Company
    ◾Fannie Mae
    ◾First American Title Insurance Corporation
    ◾Freddie Mac
    ◾GMAC Residential Funding Corporation
    ◾Guaranty Bank
    ◾HSBC Finance Corporation
    ◾MGIC Investor Services Corporation
    ◾Morserv, Inc.

    ◾Mortgage Bankers Association
    ◾PMI Mortgage Insurance Company
    ◾Stewart Title Guaranty Company
    ◾SunTrust Mortgage, Inc.
    ◾United Guaranty Corporation
    ◾Wells Fargo Bank, N.A.
    ◾WMC Mortgage Corporation

  11. RE: “Academics have criticized Mortgage Electronic Registration Systems, Inc. on the grounds that its nominal ownership of millions of home loans poses a disastrous risk for mortgage investors should Mortgage Electronic Registration Systems, Inc. ever declare bankruptcy. Such a bankruptcy could mean that mortgages would “pass into the company’s bankruptcy estate and become available to satisfy creditors’ claims’

    MERSCORP Holdings, Inc. Board of Directors

    MERSCORP Holdings, Inc. owns and operates the MERS® System, a national electronic registry system that tracks the changes in servicing rights and beneficial ownership interests in mortgage loans that are registered on the registry. MERSCORP Holdings is the parent company of Mortgage Electronic Registration Systems, Inc.

    Name

    Title

    Company

    Location

    Kurt Pfotenhauer, Chairman

    Executive Vice President and Vice Chairman

    First American Title Insurance Company

    Santa Ana, CA

    Bill Beckmann

    President and CEO

    MERSCORP Holdings, Inc.

    Reston, VA

    Michael Dawson

    Vice President, Director of Strategy for Mortgage Operations

    Freddie Mac

    McLean, VA

    Kathy Gray

    Executive Vice President

    Wells Fargo Bank, N.A.

    Des Moines, IA

    Stephen Hollingshead*

    Political Risk Consultant

    Stephen Hollingshead, Ph.D.

    Washington, DC

    Josh Kardon*

    Attorney

    Capitol Hill Consulting Group

    Washington, DC

    Michelle L. Korsmo

    Chief Executive Officer

    American Land Title Association

    Washington, DC

    Brian McCrackin

    Director of Finance

    CitiMortgage, Inc.

    St. Louis, MO

    Kevin Race

    Head of Chase Legacy Services and President of Mortgage Banking

    Chase Bank
    New York, NY

    Christine Reddy

    Vice President, Deputy General Counsel and Deputy Corporate Secretary

    Fannie Mae

    Washington, DC

    David H. Stevens

    President and CEO

    Mortgage Bankers Association

    Washington, DC

    Lawrence P. Washington

    Managing Director and Servicing Portfolio Strategy Executive

    Bank of America, N.A.

    Jacksonville, FL

    Committees of MERSCORP Holdings’ Board include the Executive Committee, Nominations & Governance Committee, Compensation Committee, Audit Committee, Compliance & Risk Management Committee, and Finance & Investment Committee.

    Mortgage Electronic Registration Systems, Inc. Board of Directors

    Mortgage Electronic Registration Systems, Inc. (MERS) is a wholly-owned subsidiary of MERSCORP Holdings. When mortgage loans are registered on the MERS® System, MERS acts as nominee in county land records for the lender and servicer, and is the mortgagee of record and nominee for the beneficial owner of the mortgage loan.

    Name

    Title

    Company

    Location

    Kurt Pfotenhauer, Chairman

    Executive Vice President and Vice Chairman

    First American Title Insurance Company

    Santa Ana, CA

    Bill Beckmann

    President and CEO

    MERSCORP Holdings, Inc.

    Reston, VA

    Edward Kramer*

    Executive Vice President

    Wolters Kluwer Financial Services

    New York, NY

    Michelle L. Korsmo

    Chief Executive Officer

    American Land Title Association

    Washington, DC

    Christine Reddy

    Vice President, Deputy General Counsel and Deputy Corporate Secretary

    Fannie Mae

    Washington, DC

    David H. Stevens

    President and CEO

    Mortgage Bankers Association

    Washington, DC

    Lawrence P. Washington

    Managing Director and Servicing Portfolio Strategy Executive

    Bank of America, N.A.

    Jacksonville, FL

    *Independent Director

    Committees of MERS’ Board include the Compliance Committee and the Legal Risk Subcommittee.

  12. Follow the Link I posted below … Lots of cases in the Link…
    I hope you find some in your state to help you.

  13. MERSCORP Holdings, Inc.’s MERS System[edit]

    Mortgage Electronic Registration Systems, Inc. began as a project in October 1993 when Fannie Mae, Freddie Mac, and Ginnie Mae produced a White Paper (with assistance from law firm Covington & Burling) about the need for an electronic mortgage registration system. The MERS acronym was coined soon thereafter. The Mortgage Bankers Association got involved and MERS was incorporated in October 1995. MERS awarded a contract to Electronic Data Systems (EDS) to develop and service the technology systems, and MERS was officially launched in April 1997.[13]

    Mortgage Electronic Registration Systems, Inc. was intended to serve as a nominee for real estate transactions in a way strongly analogous to how Cede & Co. serves as the nominee owner of record (i.e., the “street name” owner) for all securities held in trust by the Depository Trust & Clearing Corporation. In the late 1960s and early 1970s, the American securities industry was drowning in paper because of the sheer complexity of physically exchanging thousands of stock certificates every day. By “immobilizing” physical stock certificates and later replacing them altogether with book entries, DTCC enabled the development of the modern computerized securities industry.

    As mortgage-backed securities grew in volume during the 1980s, it became self-evident that a similar mechanism was needed for the mortgages placed into those securities. The underlying problem is that a mortgage loan transferred into an MBS (Mortgage-Backed Security) must become “bankruptcy remote” from the originating lender. That is, in the event the originating lender collapsed (as ultimately happened in the 2007 financial crisis to many such lenders), MBS investors demanded some kind of protection to ensure that the lender’s own creditors could not “avoid” (in bankruptcy terms, rollback) the transfer of the loans into the MBS as fraudulent conveyances and suck them back into the lender’s bankruptcy estate. The easiest way to create such protection is to simply convey the loan for consideration through three or four entities before it reaches the MBS. As noted above, each of those conveyances had to be recorded with the relevant recorder or land registry. With each loan requiring three or four assignments, and hundreds of mortgage loans going into each MBS, the result was that recorders were flooded with assignments, and investment banks found themselves choking on paperwork and recorders’ fees. MERS system fixed this problem in that most standard loan documents were changed to name MERS as the nominal beneficiary or mortgagee of record. This enabled lenders and investors to transfer mortgages without recording assignments in local recorders’ offices and in turn avoided having to pay recording fees.

    Ideally, assuming a loan is properly paid back on time, a MERS loan needs only two documents to be recorded: the original mortgage or deed of trust naming Mortgage Electronic Registration Systems, Inc., and a reconveyance of the mortgage or deed of trust back to the borrower (thus merging legal and equitable title). If all entities along the way are MERSCORP Holdings, Inc. members, then all intermediate transfers between those points are tracked only on the MERS system, and the entity who holds the loan at the end merely records the reconveyance as an agent for MERSCORP Holdings, Inc. (Notice how MERS is both an agent for the original lender and then the final lender acts as an agent for MERSCORP Holdings, Inc.; this is why MERS’ critics frequently attack it as “two-faced.”) If the borrower defaults, the loan servicer will record an assignment on behalf of Mortgage Electronic Registration Systems, Inc. to the real party in interest (i.e., an investment bank in its capacity as trustee for a MBS) and initiate foreclosure. Whereas before the MERS system that last assignment would always have been recorded at the time the MBS was created, the MERS system enabled banks to avoid having to record it unless and until (1) foreclosure became necessary or (2) the loan was sold by the MBS trustee to an entity outside of the MERS system owned by MERSCORP Holdings, Inc. If the loan performs to the very end, the assignment never needs to be recorded.

    MERS system serves several other purposes. It enables consumers, title companies and other real estate professionals to easily identify the current holders of registered mortgages and obtain discharges despite any transfers of the mortgages or mergers or acquisitions of the lenders and investors in interest that may otherwise make it difficult to trace ownership, if it is accurately maintained by the MERSCORP Holdings, Inc. membership. Information contained in the MERS system can help to identify possible mortgage fraud involving the identity of a prospective buyer and owner-occupancy issues. The centralized database of MERS system can also help detect property flipping schemes and purchases, again if it accurately maintained, a common criticism of the MERS system scheme.

  14. RE: Although the 1995 Mortgage Electronic Registration Systems, Inc. (version #1) created the MERS service mark and system – it no longer existed after the name change to MERSCORP, Inc. as of 1/1/1999 and then again to MERSCORP Holdings, Inc. on 2/27/2012 which is the owner and operator of the eRegistry but it is not disclosed in the mortgages. Homeowners did not contract with the eRegistry corporation

  15. No JG.. not MERs, Mers is a subsidiary of the … MERSCorp!

    Mortgage Electronic Registration Systems, Inc. (MERS) is an American privately held corporation. [1] MERS is a separate and distinct corporation found as a nominee in mortgages after the turn of the century and is owned by holding company MERSCORP Holdings, Inc. MERSCORP Holdings, Inc. owns and operates an electronic registry known as the MERS system designed to track servicing rights and ownership of mortgage loans in the United States and has a banking, mortgage and financial related membership.

    The current Mortgage Electronic Registration Systems, Inc. is the third generation[2] of companies with the same name established as of 1/1/1999. The original “MERS” first became the acronym, an abbreviation for the first Mortgage Electronic Registration Systems, Inc., in 1995. This corporation was registered in Delaware on October 16, 1995. In 1997 Mortgage Electronic Registration Systems, Inc. registered “MERS” as the service mark with the United States Patent and Trademark Office (USTPO) for its mortgage loan eRegistry system. This original Mortgage Electronic Registration Systems, Inc. corporation has merged with other entities created by its executives and board of directors to and change its name replacing it over the past 18 years.

    Although the 1995 Mortgage Electronic Registration Systems, Inc. (version #1) created the MERS service mark and system – it no longer existed after the name change to MERSCORP, Inc. as of 1/1/1999 and then again to MERSCORP Holdings, Inc. on 2/27/2012 which is the owner and operator of the eRegistry but it is not disclosed in the mortgages. Homeowners did not contract with the eRegistry corporation.

    The real estate law and real estate transactions in the US are subject to state regulations and county level recordation requirements, since the time of the establishment of the US as an independent country.[3] That made it quite cumbersome for financial companies to develop a smooth operation of a market based on US mortgages in the early 1980s.[4] This is because every time a financial instrument containing mortgages is sold, various state laws may require that the sale of each such mortgage (or deed of trust) be recorded in the local county courts in order to preserve certain rights (e.g., the right to foreclose non-judicially), which triggers an obligation to pay corresponding recording fees.[5] So, the financial industry, eager to trade in mortgage-backed securities, needed to find a way around these recordation requirements, and this is how MERS system was born to replace public recordation with a private one.[6][7][8] By 2007, MERSCORP Holdings, Inc. registered some two-thirds of all the home loans in the US.[9]

    Mortgage Electronic Registration Systems, Inc. (#3 1999 version) is the owner of record (or the owner’s nominee) of the security interest arising from mortgages extended by lenders, investors and their loan servicers and recorded in county land records. Allegedly, by using MERS, the lenders and investors who are the real parties in interest avoid the need to file assignments in county land records, which lowers costs for lenders and, they claim, consumers by reducing county recording fee expenses resulting from real estate transfers[10] and provides a central source of information and tracking for mortgage loans.[11] MERSCORP Holdings, Inc.’s role in facilitating mortgage trading was relatively uncontroversial in its early days a decade ago, but continued fallout from the subprime mortgage crisis has put Mortgage Electronic Registration Systems, Inc. at the center of several legal challenges disputing the company’s right to initiate foreclosures. Should these challenges succeed, the US banking industry could face a renewed need for capitalization.[12]

    The issue of the ownership of the MERS system is blurred between the entities to the point that courts tend to confuse the eRegistry system with the nominee because they use the same “MERS” acronym. MERS system is purported to have fulfilled the “Safe Harbor” requirements in the state-led Uniform Electronic Transactions Act (UETA) and E-SIGN (Electronic Signatures in Global and National Commerce Act of 2000) adopted by Congress in the documents filed by MERSCORP, Inc. nka MERSCORP Holdings, Inc. with the United States Trademark and Patent Office.

    However, it is unclear how the MERS system obtains the documents from Mortgage Electronic Registration Systems, Inc. (#3 1999 version).

    http://en.wikipedia.org/wiki/Mortgage_Electronic_Registration_Systems

  16. las vegas: “Recontrust said mers was original creditor…”
    jg: wish you had that in writing – or did you keep notes? (who, where, when?) Imo that’s either a bald face lie or patent evidence Recontrust is not qualified for the job. MERS, the original creditor?!

  17. After reinstatement …

    Escrow? Where did Escrow Go? No Escrow? He paid into Escrow!

    BAC send NOD in the amount equal to 2010 tax and ins.
    Moving for a Tax Sale. Mistake?

    Where did My Money Go? Tens of Thousands plus some..

    I let that party go .. and relieved him of my duties. Irresponsible!!

    I Trust the Org Land Trust Trustees …. One of them.. being ME!

    *** Escrow never Funded/ Closed .. or did it? 2010 TARP

    Better Late than Never?

  18. In Illinois, when you buy a property, you get Full Title, Legal and Equitable. The lender/mortgagee only gets a lien. And the lender/mortgagee by its own right in its own contract waived its right to the due on sale clause when the property went into trust.

    They are claiming to FC on the Due on Sale Clause as of the date of the Trust. hahahaha

    What’s Wrong with this Picture?

  19. Oh .. I almost forgot …. as the Trustees of a Land Trust you are responsible for things like Taxes, Insurance and Upkeep

    Or just like a Reverse Mortgage … you could lose the Estate to FC for not performing your duties.

    I thought you should know that …. 🙂

    That state shall not lend or invest in ……… ?

  20. Remember how some were told that the Primary Borrowers income was sufficient and there was not need for the extra paperwork for additional borrowers? But all our assets were listed on the app..

    Yea .. Me to … Especially in Reverse mortgages.

    My advise … Always get Everyone who holds an Interest in a Household Estate to sign the Note, because you can not fc on an Estate in Irrevocable Trust for the debt of one borrower…. not legally at least in states with community property or marital asset laws.

    That poor beneficiary got the crap dumped on her … I didn’t want to leave the mess for my kids … Its my OCD with things being organized and clean.

    Just sayin ….
    Before you touch my things .. you must come with Clean Hands.

  21. You can only transfer Rights You Have!
    Not Rights you don’t!

    Hence … The Estate is Sued in addition to the Borrower.

  22. Being a tenant in entirety (not a debtor) of a property that title to the estate was placed irrevocably into trust …. that gives ME and my Heirs beneficial interest in the estate.

    Due on Sale clause … scratch that one!

    I and My heirs hold beneficial interest the Irrevocable Land Trust, where we are the Trustees.

    And Nobutty at MERS or any where else had our permission to transfer our interest to their butty partner in crime!

  23. Mortgages have Due on Sale Clauses .. its always wise to get the mortgagees permissions before putting the title to the estate into a trust, because the Mortgagee has a “Right” to call the loan Due. It is advised to get it in writing from the Mortgagee that they will NOT enforce the due on sale clause to protect yourself before putting property into a trust.

    But on the face of things, the contract they Wrote and Offered …. well… lets just say they knew and waived that right.

    Just sayin ….

  24. Would you say Fraud on the Face of the Instrument?

  25. Here I was banging my head into the wall and trying to payoff a mortgage that does not exist and get the lien released, that does not exist. And get my Title cleaned up.

    Guess What? The Mortgage is Unenforcable and the broker/lender knew it at the time of closing.

    Buttwipe!!!

  26. JG, Illinois is a lien theory state. We do Mortgages and DOTs. DOTs are treated as mortgages in fc as we are a judicial state.

    Now.. this mortgage of mine ..(?) says Mortgage (but there is no lien).
    Inside this so called Mortgage ….The Title to OUR household estate was granted and warranted FREE n Clear of all liens IRREVOCABLY.

    No beneficiary .. but then again, we didn’t know the trust existed.

    Irrevocable trusts have protections against creditors …. Like they can not fc or attatch to MY Estate on a debt of another party holding an interest in the property.

    I didn’t sign the note … I am not a debtor. They cant attatch to my Life Estate placed into Irrevocable Trust.

  27. I am so tired of listening to legal arguements , not an attorney nor do I want to be one ( no offense) for 6 1/2 years we are trying to find our creditor. Recontrust said mers was original creditor and now the cwalt trust is creditor. We rescinded. Tired of this bullshit, ibut fortunately I’m still in my house. Makes me crazy

  28. KC, I’ve ignored the issue, admittedly, because it had me seeing red – literally. Okay, so most of what I think I know is about dot’s, not mortgages. I do know mortgages are 2 party, not 3 party, instruments. I also concede it’s been “quite a few years” since I studied that stuff. But I recall (correctly?) that a mortgage does not (or did not) express a stinking conveyance nor is it tantamount to one. It creates a lien only, My recollection is there was no form of conveyance – just the creation of a lien, or at least that’s what I was taught all those moons ago. So when I saw a NJ “mtg” with conveyance language to “MERS”, altho I don’t like bad language in print, that doesn’t mean my brain doesn’t come up with it on its own, and it sure as sam hey did just then. Lots. I did quit a jig and thought valium was in order (didn’t have any). I’m not exaggerating fwiw – nothing really. Just could not believe the “MERS” mortgage includes, first of all, a conveyance and then to a software program. And by then I was probably aware of the stuff MERS swore to in Nebraska (no interest, yada yada). I closed that case I was looking at and never looked at it or one like it again in honor of my sanity. If anyone can point me to a MERS mortgage, I guess since it’s been around 3 years, maybe I could look at it again without getting sick and seeing scarlet. *(*%#@! It really makes me mad as heck, esp if my memory serves and a mtg is (supposed to be) just a stinking lien.

    Neidermeyer – good thing you have back-up. I suggested some time ago, from what I believe is experience, that people remotely back-up their stuff. Or put it in the cloud – something.

  29. Dear Wells Fargo DOUCHE

    You succeeded in deleting my CTSLink related file folders off of both of my pc’s that are internet connected .. I applaud your tenacity ,, that second pc is very rarely online and was only online for a few hours late on the evening of Jan 29th and early morning on the 30th while I did my taxes… If that one goes back online please be sure to check it ,, the files are back … unfortunately all my larger memory sticks are in the mail to interested parties and my only available backup is on DVD media ,, as you are well aware my primary pc , the one you targeted first , the one that is always online … does not have a dvd drive , only cd drives ,, so I can’t entertain you by placing the files back on that one just yet.

    Maybe I should start posting remittance files ,, you know ,, they have those wonderful tidbits about trigger levels … and the earlier files have the monthly insurance premiums ,,, funny how after you collect the loot that line item disappears .. seems like the insurer paid off in full doesn’t it … who kept the loot ? I didn’t get any reduction in my balance… The investors seem to have been forgotten… they’re still getting their skim off of the interest collected.. they weren’t made whole… Makes you go HMMMMM …

  30. MERS mortgages still going strong to this day 2014. I see them being recorded mortgages every time I check the clerks office. ……SSDD ….

  31. It is my opinion that the judges do not understand the MERS set up…like you said a “private”, “members only” agency for tracking and recording, circumventing taxes, fees and misc…Not buying any of it, even the fancy explanations. The truth lies elsewhere, IMHO!

    In this venture I have found most of what I read to be untrue and even what I see, I have started to question…at least with the lending system and the deed recording. All shit! IMHO

  32. kc, anyone – the thing I DON’T like about Robinson, and in fact am quite wary of, is the court finding that the note payee is the original beneficiary. That seems more the court’s own legal conclusion to me, not a fact. I don’t think the dot names a party with the beneficial interest in the dot, a true ben. (Does it have to? Yes, say I) It would have, if MERS et al had continued what they originally did – naming the lender and then assigning to MERS, or they could have so easily said (take 7) ‘ABC is the beneficiary and MERS is its agent’ right in the dot. These (theoretically) well-educated individuals chose not to because they did NOT want MERS as an agent, and feel free to correct me if I’m wrong, but wasn’t it only after the Consent Order that MERS and its buddies claimed agency? Before that wasn’t it “MERS is thee ben”? If MERS is thee ben, also take 7, then the note is with one party and the dot with another – from the get go, which is why I’m not so sure about Robinson; the devil for the rest of us may be in the details, that the orig note payee is the ben as a matter of fact, at least so says the Robinson court. But at least in CA, guess people could try to rely on the adjudication Robinson wanted and got. I’m trying to figure how this is going to play out from here in the Robinson case for the Robinsons and what the court’s ruling re: the payee is the ben is going to mean to everyone else in that juris. If assgts don’t have to be recorded in CA, I’d worry about an onslaught of allegedly executed but unrecorded assgts. That would take a whole lot of fraud, but that doesn’t seem to be a deterrent.

  33. The MERS Conveyance

    The heart of your mortgage – the most important clause in the entire document – is the “Transfer of Rights in the Property” clause. This is the language that creates the lender’s security interest backing the loan – it’s the sentence that allows them to foreclose if the borrower doesn’t pay.

    But many Florida mortgages contain a bizarre twist – the mortgage conveyance does not go to the lender – whoever made the loan – but to another entity known as “MERS.” This strange construction – where the loan goes one way and the mortgage goes another – runs against real estate law that has existed for hundreds of years and may have serious consequences for anyone trying to enforce that mortgage.

    What is MERS?

    MERS is such a strange creature that courts have repeatedly had to explain exactly what it is anytime they deal with it. I’ll turn it over to the judges:

    In 1993, the MERS system was created by several large participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system.

    The initial MERS mortgage is recorded in the County Clerk’s office with “Mortgage Electronic Registration Systems, Inc.” named as the lender’s nominee or mortgagee of record on the instrument. During the lifetime of the mortgage, the beneficial ownership interest or servicing rights may be transferred among MERS members (MERS assignments), but these assignments are not publicly recorded; instead they are tracked electronically in MERS’s private system. In the MERS system, the mortgagor is notified of transfers of servicing rights pursuant to the Truth in Lending Act, but not necessarily of assignments of the beneficial interest in the mortgage.

    MERSCORP, Inc. v. Romaine, 861 N.E.2d 81 (2006)

    MERS operates much the same way in Florida:

    Here, MERS’s counsel explained to the trial judge at the hearing that, in these transactions, the notes are frequently transferred to MERS for the purpose of foreclosure without MERS actually obtaining the beneficial interest in the note.

    Mortgage Electronic Registration v. Azize, 965 So.2d 151 (Fla. 2d DCA, 2007)

    The purpose of MERS is to sidestep local and state requirements that mortgage documents be placed in the public record – and also to avoid the fees that attach to such recording. As a consequence, there is little or no public record as to who actually owns the loan on your home or who might have the right to foreclose.

    You’ve got a MERS in your mortgage

    The mortgage contains one very specific clause that grants a lender the right to foreclosure on a defaulted loan, called the “conveyance” clause. It used to say:

    This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender, the following property…

    With a MERS instrument, the last sentence is changed to read:

    For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, the following property…

    It’s that sentence that creates a whole lot of problems. First of all, no one really knows what it means to say MERS is “solely as nominee for Lender.” That seems to invoke a bizarre legal scenario in which the borrower somehow creates an agency relationship between the Lender and MERS. To make this more clear: any mentally sound person can, with proper procedures, appoint a person to act on their behalf as an agent, and to handle their business or personal affairs. But no person can appoint an agent to act for someone else without that person’s permission. That’s what seems to be happening here.

    The second problem with that MERS conveyance is that it seems to create some limited power of MERS. Unlike an agent who is fully authorized to act for the Lender, MERS is, in this case, “solely” the “nominee” for the Lender. While it’s not clear exactly what that includes, it’s clear that it does not include the type of broad, sweeping powers an agent would need to have in order to do many of the things that MERS pretends to be able to do with your mortgage – especially to assign it to someone else.

    The third problem may be the biggest. Under Florida law, and the laws of many other states as well, a mortgage cannot exist without the debt it is supposed to secure. The mortgage, in other words, always follows the note. But in MERS conveyances, that doesn’t happen. The mortgage, at its inception, goes in a different direction than the debt – the note goes to the lender, but the mortgage goes to MERS. (This is commonly referred to as “bifurcation.”) It’s not clear at this point whether MERS’ status as “nominee” is enough to pretend that the lender is holding the mortgage through its supposed agent, MERS… but if it’s not, there are decades of case law that say that the mortgage conveyance to MERS may be a nullity.

    Let me say that another way: it’s as if the mortgage were never created at all.

    And without a mortgage, there’s no foreclosure. There’s still a note, and a debt, but the house is free and clear.

    Is there life in MERS?

    None of these problems with the MERS conveyance have yet been addressed by any Florida court, and it’s not yet clear how they would rule if they did. However, if you haven’t yet signed your mortgage, it’s something you need to be aware of, and if you already have a mortgage with MERS in it, you need to know that these issues exist if you ever find yourself facing a foreclosure action.

    Read the whole “What’s In Your Mortgage” series here.

    http://floridaforeclosurefraud.com/2010/03/mers-whats-in-your-mortgage/

  34. Other Relevant Cases
    ◾Georgia: Skillings v. Bank of America: Judgment for the Defendant
    ◾Illinois: Union County, Illinois v. MERSCORP, Inc.: Judgment for Defendant
    ◾Michigan: Maslowski v. Mortgage Elec. Registration Sys., Inc.: Judgment for Defendant
    ◾Montana: Pilgeram v. Mortgage Elec. Registration Sys., Inc., et al: Judgment for Plaintiff
    ◾Pennsylvania: Souders v. Bank of America: Souders. Bank of America: Judgment for Defendant
    ◾Texas: Hines v. Wells Fargo Bank, N.A.: Judgment for Defendant
    ◾Texas: Reeves v. Wells Fargo: Judgment for Defendant
    ◾Washington: Norris v. Wells Fargo Bank, N.A.: Judgment for Defendant

    For descriptions of cases and other materials, please visit http://www.mersinc.org.

    ###

    MERSCORP Holdings, Inc. is a privately held corporation that owns and manages the MERS® System and all other MERS® products. It is a member-based organization made up of thousands of lenders, servicers, sub-servicers, investors and government institutions. Mortgage Electronic Registration Systems, Inc. (MERS) serves as the mortgagee in the land records for loans registered on the MERS® System, and is a nominee (or agent) for the owner of the promissory note. The MERS® System is a national electronic database that tracks changes in mortgage servicing and beneficial ownership interests in residential mortgage loans on behalf of its members.

  35. Its the Trustors/Grantors responsibility to keep the Eye on the Trustee.

    Ain’t nobody watchin..

    but sumbutty is gambling with your assets without you knowledge and consent.

  36. You got it and they ALL have a duty…but who’s watching them, except us?

  37. There is no servicing on “Prrivate Placement” Securities.
    Title to Estate granted Irrevocable …
    I spy the Agreement of a Trust, But I cant find Waldo the Wild Deed to perfect the trust.

    Sumbutty has a duty to me … My Org Trustee

  38. Look at the lineage…Americas Wholesale Lender as lender (trade name; cannot be), Country Wide…to CW Home Loans Servicing, to BAC Home Loans Servicing, to BOA Home Loans, to BOA, N.A. all f/k/a…transfers after the close or cessation of corporate dissolution. What? Corporations cannot sue or commence legal action when merged-closed…assignments are done long after the corporation is closed and some the entities signing left the company prior to the signing….DAH, just saying

  39. Done extensive research on BOA – CW and my conclusions, again mine only…BOA bought all servcing rights nothing more, for approximately $450.00 per loan…

    And MERS is a separate entity from MersCorp, if I read the transcript correctly. MERS has no employees to nominate? Nor can they, MERSCorp just step in their shoes and do their bidding.
    Thoughts KC?

    It is the same play as BOA, CW…they did not inherit any rights to foreclose. And I have a loan with them, where there is no trust, but they claim they are working for the servicer, like the have a collateral assignment or an injury to the investors. Cannot be. IMHO

  40. Who Insures the MERSCorp Members?

    The State Shall Not …………

  41. In reverse mortgages they sue the estate.

    In illegal ( reverse) mortgages they sue the estate.

    They sue et al … non borrowers, tenets in entirety, heirs, beneficiaries, people with rights ….

    What Rights?

    Legal , Equitable, Real Property Rights?

    “State a Claim”

  42. Laughing is Good for the Body, Heart and Soul. 🙂

    MERS IS THE AGENT OF MERSCorp

    RE: ~MERS and MERSCorp v Robinson ~

    ~~~~~~~~~~~~~~~~~~~~~~~~~
    To Insure Title …
    I need:
    Trust Agreement from the seller
    Proof MERS paid the lender listed on note
    Proof CW paid MERS for the note

    then BOA went and topped that off in 2011

    Proof BOA paid CW for the note

    HELP?

  43. Once again, nominee of what? They have nominated their “nominee status to another nominee of the original beneficiary…and beneficiary of what? and MERS and Merscorp are not the same! LMAO…I have a few expletives for them, Ha, Ha, Ha…all blather.

  44. Laughing my tail off. MERS imo isn’t an agent, but hey, if they insist…… from KC’s case, MERS and MERSCorp v Robinson (MERS brought suit after learning of borrowers’ default judgment against the lender in their QT action and tried to get the expungement of the dot 86’d):

    “The gravamen of the parties’ dispute raises a single, all-important question: Were Plaintiffs entitled to notice of Defendants’ quiet title action before Defendants brought that action in California state court? Defendants unsurprisingly answer this question in the negative, reasoning that Plaintiffs were not entitled to notice of the quiet title action because Plaintiffs are merely the nominee or agent of the Lender under the Deed of Trust and therefore have no independent interest in the Property.”

    But I’m kind of feeling this is a belated “duh” moment because at least some of us should have figured this out (yes, I’m included fwiw). Even if MERS is anyone’s agent, it isn’t the agent who’s entitled to notice – it’s the principal. The only known (alleged) principal was (is in other cases) the original lender. So, then for many the issue will be serving the original lender who may be out of business. Businesses can
    be sued (named as defendant), on info and belief, for some time after they are officially toast. One would need to gear up on “officially toast” dates, registered agents (S0State), and so on. But yahoo at the possibility. lay opinions. **Thanks for the moment, KC.**

  45. KC,
    Thanks for that link,
    this statement therein
    270 In fact, in the case of Ron Meehow, it is alleged in the lawsuit that the trustee affirmatively told Ron’s attorney that they “do what the bank tells them.” This is a questionable statement from the only neutral in a non-judicial foreclosure.

    In my case, when I challenged someone ‘having an interest in my home’ with no assignment and someone appointing themself as substitute trustee AFTER posting a notice to accelerate the debt, I asked the trustee on file not to give them my Deed, they were trying to steal my home and the lender of record, if they wanted them to have it, would have filed an assignment. The trustee said, ‘their client is our client too”.

    My opinion, is no neutrality there, it was ‘go with the flow’ if they want it, we are going to give it to them, because they have an interest (albeit nothing in writing to support their interest but they sure expressed it)…(we are on the inside, you are on the outside and you have something we want)

    Trespass Unwanted

  46. RETAKE …

    findsenlaw, on February 2, 2014 at 1:11 pm said:

    First, congratulations to Barbara Forde on fighting hard for this decision. Also, in my opinion, John Gault is dead in his assessment of how the trustee is an integral part of the three-party deed of trust and how this role is perverted when the trustee is but an extension of the bene. When the trustee is not neutral, there is no protection for the borrower for the privilege of letting the beneficiary conduct a non-judicial sale. It’s simply a 2-party mortgage with a mortgagor (borrower) and a mortgagee (creditor). This law review article that I wrote about on my blog describes this and other issues with trustee neutrality (or lack thereof) quite well. http://findsenlaw.wordpress.com/2013/10/02/can-we-trust-trustees-asks-john-campbell/

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

  47. KC,
    My take on that comment from the case is based on this statement that precedes the one you pointed out.

    “The Court also rejected the plaintiffs’ claim that a substituted trustee lacked authority to record a notice of default.”

    Before i comment, to help some people who find it hard to track what’s happening when it’s all said an done, a picture, some stick characters to represent each thing named and some arrows and you kind of get it.

    Also I’m going to paraphrase with my own mental twists on these abridged notes in the article without reading the entire case.

    * People did a lot of refis (my way of replacing the words “obtained multiple loans secured by their residence”)
    * fell behind in their mortgage payments
    * inquired about a possible loan modification with Bank of America

    (stop there – why did they ask for a loan modification from BOA? Court presumption, because BOA loaned them some money, they have some sort of contract or agreement with BOA, they fell behind and will go into default with some obligation to BOA)

    * never received documents confirming the loan modification
    * the modification was never implemented.

    (stop there – seems they are in default because above it says they ‘fell behind’ on their payments)

    * Bank of America executed a substitution of trustee.
    * The new trustee recorded a notice of default.
    * a notice of trustee’s sale was recorded.

    Now the people want to complain about the trustee as not having authority to record the notice of default.

    Court also rejected the plaintiffs’ claim that a substituted trustee lacked authority to record a notice of default.

    (Stop here – court says, why you saying trustee lacked authority, if it is the trustee even by substitute assignment, it did what trustees can do, so you can’t come in here telling us trustees can’t do what trustees can do unless and until you tell us this was not a true trustee assignment or they were assigned a trustee by someone who had no right to do so, but to just say they can’t do something without telling us why, we are not going to accept that argument.)

    The Court held that, to state a claim based on a substituted trustee’s lack of authority to record a notice of default, the plaintiffs must allege facts showing that the new trustee was not the trustee under the deed of trust and was also not an agent of the trustee or beneficiary.

    That’s my take.
    People don’t speak legalease and to pay someone to ‘re-present’ their words to a judge and that someone doesn’t speak it well enough to say the right things at the right time in the right way, is just a waste of time and money. Courts are just a way to steal property and get a judge to give it legal stamp of approval, in my opinion.

    Trespass Unwanted.

  48. So if FNMA (or anyone) has made itself a co-obligor, what’s the so-what? Imo, the so-what is that in order to take the collateral for the loan (or the loan underlying the MBS’s) anyone who wants to f/c has to barrel thru FNMA first on its guarantee.* In other words, they can’t come after your home until FNMA has performed. If FNMA has performed, pursuant to its prospectus, it has to have repurchased the loan from a trust in order to 1) stop its guarantee payments and 2) for foreclose, in which case, a trust will not be the foreclosing party. Now, FNMA seems to want servicer’s to foreclose, even tho once FNMA “repurchases” (we’re pretending there were transfer), it’s FNMA’s loan and no one else is the rpii, which is what Schaack got so hot about. (his cases may not be precedent, but they can be persuasive fwiw – or just plagerize his language in your pleading). And btw, the Steinberger case brought up the Good Samaritan rule, something about when someone volunteers to perform an undertaking. FNMA volunteered to guarantee your loan. Since FNMA itself was created to provide more liquidity for home loans and it and sec’n have been sold as a benefit to homeowners, homeowners, even though the payment goes to the investors, is an intended beneficiary of FNMA’s good samaritan guarantee. imo. (just another ‘affirmative allegation or affirmative defense to make).
    This is not legal advice – it’s lay musing – ask a lawyer or 10.

    *Say Aunt Agnes co-signed for your car. If GMAC, someone, wants to get paid, would they come after only you? Nope, they’d come after Aunt Agnes, also, and if you don’t like her, you could insist that she become a litigant – joined by you or you allege the bankster has failed to join an indispensable party (depending on the stage of lit, maybe based on newly discovered evidence and may have to amend complaint) More strictly lay opinions

  49. I believe that by its guarantee, FNMA has become a co-obligor on many of our notes. It’s a tad complicated, because FNMA’s guarantee is, i believe, technically on the MBS’s, not necessarily on the p & i payments, although the guarantee seems to pass thru the trusts by way of the servicer advances, which are then reimbursed by FNMA.

    The material out of FNMA imo is judicially noticeable. Steinberger got as far as she did because she had some jn material which allowed her to dodge a mtd (in her case, relevant to IndyMAc and the FDIC, etc.).

    If your loan were within the FNMA loan limits (see them for the date of your loan orig – yahoo, google) and not a teaser rate or an arm that could go up more than 2% (rate “cap”, not payment) annually with a lifetime “ceiling” of 5 or 6% over the life of the loan and not a NINJA (no income, no asset, and so on or even stated income), chances are, the loan went thru FNMA. The material is all available on line – all FNMA’s hocus pocus about foreclosures, buy-backs, guarantees – all of it. We have no obligation to be aware of this material, as FNMA issues it for seller-servicers. Therefore, in my strictly lay opinion, when one finds it, it qualifies as ‘newly discovered evidence’, which one will have to look into or get legal advice on introducing at certain junctures of litigation. Ask a lawyer because I can’t even give a lay opinion how and when it’s possible to ask for a clarification – did your loan go thru FNMA? If all else fails, allege it did (based on the likelihood it did by the factors above) and ask for jn of FNMA’s material. Strictly lay opinions – ask a lawyer.

  50. “nominee of the benficiary” Ha, Ha, Ha, a-holes! I like it KC

  51. Denied 7 times !!!! Every excuse in the book used…..called Freddie directly and asked why…..they say they have nothing to do with it……called SERVICER and they say investor declined per guidelines. ….The most awful circle jerk of all times …… I just call it theft at this point

    They are liars….every one of them

  52. “FNMA Servicing Guide, Part VI, Section 304: Reimbursement of Servicer’s Advances

    As a follow-up to recent Fannie Mae News Releases (on February 10, 2010 and on March 1, 2010), Fannie Mae will expedite its REIMBURSEMENTS of delinquency ADVANCES and unpaid principal balances for loans reclassified out of MBS pools. Servicers will receive FannieMae reimbursements one business day prior to the draft date of scheduled remittances for the month in which the reclassification takes place. This expedited reimbursement will assist servicers by eliminating the need for advances related to reclassified MBS loans.”

    There are probably more recent updates of this judicially noticeable material – this part is a lay opinion.

  53. re: my comment at 5:05 – the “bifurcation” referred to there doesn’t mean the kind we generally knock around.

  54. FNMA Announcement SVC-2010-05, Miscellaneous Servicing Policy Changes, provided that effective with foreclosures referred on or after May 1, 2010, MERS must not be named as a plaintiff in any foreclosure action, whether judicial or non-judicial, on a mortgage loan owned or securitized by Fannie Mae. The Announcement further stated that the assignment from MERS to either the SERVICER or Fannie Mae must be recorded before the foreclosure begins.

    Fannie Mae is clarifying the requirement that the assignment from MERS to the SERVICER or Fannie Mae be recorded before the foreclosure begins in certain circumstances as set forth
    below.

    This revised guidance replaces in its entirety that set forth in Announcement SVC-2010-05.

    Effective May 1, 2010, MERS must not be named as a plaintiff or foreclosing party in any foreclosure action, whether judicial or non-judicial, on a mortgage loan owned or securitized by
    Fannie Mae. ”

    jg: so FNMA still controls loans it’s ‘securitized’? Why isn’t this mandate coming from the alleged trustees of the secn trusts? After the alleged securitization of loans, FNMA is a stranger to them, UNless it retains control by virtue of its guarantee (in which case, how is this a sale?)”
    Seems to me that if FNMA’s guarantee is such that its control is assured, FNMA has made itself not only a co-obligor, but possibly the
    primary obligor (if the guarantee hasn’t itself made FNMA a co-obligor).

    “When MERS is the mortgagee of record, the SERVICER must prepare an assignment from MERS TO THE SERVICER and bring the foreclosure in its own name…..”

    jg: No comment necessary (out of me, anyway, since you all know where I’m at about this bs), but I will note Schaack had it right about FNMA’s bad acts in JPMC Nat’l Ass ociation v Butler:

    “Thus, it appears to the Court that the delay by CHASE in producing the subject BUTLER Note was to give Baum and/or Cullen & Dykman ample time to temporarily borrow the BUTLER Note from FANNIE MAE for its May 2, 2011 presentation to the Court. Despite its December 2011 admission that FANNIE MAE owned the subject BUTLER mortgage and note, CHASE, prior to this, continuously presented its ownership subterfuge to Special Referee Goldstein and the Court. The Court cannot countenance the deceptive behavior of CHASE, the alleged owner of the subject BUTLER mortgage and note, its counsel, and FANNIE MAE, the real owner of the subject BUTLER mortgage and note. FANNIE MAE’s Servicing Guide, with its deceptive practices to fool courts, does not supercede New York law.”

    jg: or any law

  55. from the horse’s mouth:

    “The Fannie Mae Repurchase Portion is defined as the sum of
    the unpaid principal balance, with adjustments for any active
    bifurcated mortgage * loan as required by Part VI, Section 202, Repurchase Proceeds, of the Servicing Guide;

    …….expenses that Fannie Mae has incurred, including, without limitation, ADVANCES for which Fannie Mae has previously REIMBURSED the servicer…….”

  56. Each has certain rights, legal or equitable, separated from the complete bundle of real property rights . . . the trustee is the holder of legal title

  57. RE” Our conclusion is supported by the supreme court’s decision in Eardley v. Greenberg, 164 Ariz. 261, 792 P.2d 724 (1990). In Eardley, a borrower/trustor filed an action to set aside a trustee’s sale on the grounds the notice of substitution of trustee was defective. Greenberg, the beneficiary who executed the notice, and the alleged successor trustee, Investment Security, Inc., filed a motion for summary judgment, which the trial court granted. Id. at 263, 792 P.2d at 726. The supreme court reversed, holding that a triable issue existed as to whether the substitution was defective, because the notice may have been signed by Greenberg without authority or permission from one of the other beneficiaries.

    In reaching this conclusion, the supreme court stated:
    The trustor, trustee, and beneficiary are inextricably interconnected links in the chain of title to real property. Each has certain rights, legal or equitable, separated from the complete bundle of real property rights . . . the trustee is the holder of legal title . . . [T]he beneficiary holds an enforceable lien on the property. The trustor possesses the bulk of the bundle of rights”

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    Interesting .. Yep!

    ” because the notice may have been signed by Greenberg without authority or permission from one of the other beneficiaries.”

    One of the Other Beneficiaries? .. You don’t say

  58. First, absent an affirmative allegation by the borrower that the trustee or beneficiary is not, in fact, the “true” trustee/beneficiary, the trustee or beneficiary may conduct a trustee’s sale without having to demonstrate his authority to foreclose. Hogan, 230 Ariz. at 586, ¶ 5, 277 P.3d at 783

  59. “… and was also not an agent of the trustee or beneficiary. ”

    Yeah, KC – only a duly apptd trustee may execute a NOD, not some stinking agent of the alleged ben. If courts say an agent may, or even if statute says an agent may, the courts and or the legislators are smoking something. If an agent for the ben may exec a valid NOD, there’s no such thing as a dot. There’s just the ben and the borrower, the latter of which never agreed there would be no one at all in his court if a dispute arose or even if not; the borrower would have subjected the thing he placed in trust to the whim of the beneficiary – no need for a trustee, so the heck with a dot. They got the inch they wanted all those years ago and now the I got mine F U gang has taken “the ugly mile” or is trying to.
    What are you looking for in seeking comments?

  60. T.U. … the case you just posted.

    RE: ” The Court held that, to state a claim based on a substituted trustee’s lack of authority to record a notice of default, the plaintiffs must allege facts showing that the new trustee was not the trustee under the deed of trust and was also not an agent of the trustee or beneficiary. ”

    Comments?

  61. If It’s Not In Writing, It Didn’t Happen: Oral Promises To Modify A Loan Are Not Enforceable

    1/31/2014 by Alejandro E. Moreno, Lisa Yun
    | Sheppard Mullin Richter & Hampton LLP

    http://www.jdsupra.com/legalnews/if-its-not-in-writing-it-didnt-happen-63853/

    excerpt
    “Bank of America orally represented that the plaintiffs had been granted a permanent loan modification. The plaintiffs, however, never received documents confirming the loan modification and the modification was never implemented. ”

    Trespass Unwanted

  62. Neil’s statement seems to forget the all to familiar ‘lost note affidavit’ that is readily accepted, that throws UCC 9 out the window.

    “And remember as well that it is a mistake to assume that the mortgage or deed of trust is governed by Article 3 of the UCC. Security instruments are only governed by Article 9 and they must be purchased for value for a party to be able to enforce them.”

    Faux testimony – ex parte
    Yo judge, I had a note but I lost it, here’s a statement true correct and complete that I had one and lost it, since there is no one to rebut that I had it and no one to rebut that I lost it, you have to accept my affidavit as truth and it has the public trust because it’s notarized.

    sarc
    What UCC?

    As for stealing? it’s about time, my guess is outside of the courts has made them investigate? Judges in charge of the bankruptcy have done a terror-ble job of it. Hoping they fall out of immunity onto the civil side for what they’ve done to the living.

    N.Y. Attorney General Announces Newly Formed Financial Crimes Bureau, Appoints Its New Chief
    1/31/2014 by Scott Himes | Ballard Spahr LLP
    http://www.jdsupra.com/legalnews/ny-attorney-general-announces-newly-fo-81143/

    Trespass Unwanted, Creator, Corporeal, Life, People, Free, Independent, State, In Jure Proprio, Jure Divino

  63. I think you need to read up on the PPIP (Public-Private Investment Partnership) arrangement. The losses were borne by the public, the profits were taken by the private (aka carpetbaggers)

  64. Maybe Dimon will be next…

  65. Madoff’s son also commited suicide. But good will always prevail as long as we continue to stand up for our rights.

    NEVER AGAIN.
    REMEMBER WHAT AMALEK DID TO YOU.

  66. These guys dont F@ck around.

    http://www.housingwire.com/articles/28796-third-prominent-banker-found-dead-in-six-days

    NEVER AGAIN.
    They are getting desperate.

  67. Question is
    What did Indymac as servicer to ?? loose for one west to be compensated for via fdic shared “loss” agreement. Remember the receiver ” steps into the shoes of” and the new owner inherits both the assets and liabilities i understand but check for yourselves.
    What assets precisely were there to sell? ( Bill black can tell you all about indymac) Foia both request and appeal to fdic were blown off ” all files were transferred ” can seek judicial review under foia sol is 6 years i believe.
    Pro se lay opinion.

  68. ¶96 While the alleged insurance payments are indeed
    speculative and unsupported, the assertion that the FDIC has already
    reimbursed OneWest for Steinberger’s default is not unsupported, based
    on the fact the Shared-Loss Agreement does appear to authorize such
    reimbursement. Under A.R.S. § 47-3602, “an instrument is paid to the
    extent payment is made by or on behalf of a party obliged to pay the
    instrument and to a person entitled to enforce the instrument.” Thus, if it
    is true that the FDIC has already reimbursed OneWest for all or part of
    Steinberger’s default, OneWest may not be entitled to recover that amount
    from Steinberger.
    ¶97 Given that Steinberger has adequately pled a claim for
    discharge based on the FDIC’s alleged payment of all or part of her loan,
    we vacate the trial court’s dismissal of this part of Steinberger’s
    discharge/payment claim.

    EXCELLENT POINT, YERRRONNNNNERRRRR

  69. And then again… There will always be a place for humor, no matter how bad things appear to be.

    Subject: Fwd: New English coming soon?——

    The European Commission has just announced an agreement whereby English will be the official language of the European Union rather than German, which was the other possibility.

    As part of the negotiations, the British Government conceded that English spelling had some room for improvement and has accepted a 5- year phase-in plan that would become known as “Euro-English”.
    In the first year, “s” will replace the soft “c”.. Sertainly, this will make the sivil servants jump with joy.

    The hard “c” will be dropped in favour of “k”. This should klear up konfusion, and keyboards kan have one less letter.

    There will be growing publik enthusiasm in the sekond year when the roublesome “ph” will be replaced with “f”.. This will make words like fotograf 20% shorter.

    In the 3rd year, publik akseptanse of the new spelling kan be expekted to reach the stage where more komplikated changes are possible.

    Governments will enkourage the removal of double letters which have always ben a deterent to akurate speling. Also, al wil agre that the horibl mes of the silent “e” in the languag is disgrasful and it should go away.

    By the 4th yer people wil be reseptiv to steps such as replasing “th” with “z” and “w” with “v”.

    During ze fifz yer, ze unesesary “o” kan be dropd from vords kontaining “ou” and after ziz fifz yer, ve vil hav a reil sensibl riten styl.

    Zer vil be no mor trubl or difikultis and evrivun vil find it ezi TU understand ech oza. Ze drem of a united urop vil finali kum tru.

    Und efter ze fifz yer, ve vil al be speking German like zey vunted in ze forst plas.

  70. “…He was involved in the process of rescuing the bank in the wake of the 2008 financial crisis, when many investment banks found their debts were ‘toxic’, and unlikely ever to be repaid.
    Broeksmit, a renowned risk expert, assisted the bank’s efforts to shift the worst of the debt, and reduce its total amount of lending.
    Chiefs at Deutsche Bank had planned to promote Broeksmit to its management board in 2012, but stopped when the German financial regulator expressed doubts about his experience as a leader.
    Scotland Yard confirmed only that a 58-year-old man was found hanged…”

    http://www.dailymail.co.uk/news/article-2547684/TWO-senior-American-bankers-working-London-commit-suicide-just-two-days-one-jumped-500ft-death-JP-Morgan-skyscraper.html

  71. If nobody sees the enormous conflict of interest this country as a whole has become, then it is only right that it should implode.

    And yes, E.ToLLe, I do cut-and-paste and post it. Because, apparently, this country I decided to become a citizen of a while back, under oath and after a thorough investigation into morals, character and whatnot, has been so thoroughly screwed up that, unless people start reading how much, they won’t get it.

    Explain how you can insure (i.e., third-party professing to apply insurance regulations) to what you have a vested interest in.

    http://www.usatoday.com/story/money/business/2014/01/31/ny-85b-bank-of-america-settlement/5084963/

    N.Y. judge OKs $8.5B Bank of America settlement

    Big insurer American International [!!!], one of the investors [!!!] in the securities, had objected to the settlement on grounds that BNY Mellon failed to make a strong enough effort to recover money for the investors.

    In a statement, AIG said parts of Kapnick’s ruling “are not supported by the record and … set a dangerous precedent that could eliminate important protections for investors.” New York-based AIG said the case is “very far from over” because the settlement won’t take effect until several potential appeals of the ruling are resolved.

    AIG said it was pleased, however, with Kapnick’s decision to allow billions of dollars in investors’ claims on home-loan modifications by Bank of America to go forward because in that instance Bank of New York Mellon settled the claims without sufficiently examining the issue.

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