Beth Findsen Weighs in on Steinberger

Beth Findsen, Esq. of Scottsdale, Az who is arguably one of the best legal writers in the country, along with our own Danielle Kelley, Esq. in Tallahassee, has written an article that I think captures the essence of the Steinberger. You can read the entire article HERE. As usual, Beth succeeded in stating the point in far less words than I do.

The court does a good job of explaining the separate instruments of the note and deed of trust, and listing and describing the rights and responsibilities of the three entities involved in a deed of trust, the trustee, the trustor, and the beneficiary.

The court understood the problem of an assignment of an interest years after the interest has already been transferred.  If there is no interest to transfer, nothing transfers.  It’s as simple as that.

The court also does a good job of analyzing what the Arizona Supreme Court actually said in the oft-cited Hogan case.  The Hogan court did not say that one can never mention the authority of the beneficiary or the note holder in a lawsuit opposing foreclosure, or risk being swept into the dreaded “show me the note” category and summarily dismissed.  Rather, the Hogan court was concerned with the lack of affirmative allegations in the Hogan pleadings about how and why the beneficiary might lack authority, or might not be the beneficiary.

The Steinberger court also recognized that the point of listing securitization facts is to establish a timeline that may show that the transfers in a purported chain of title cannot be true, if the note was in fact transferred to a securitization trust by a set closing date.  This is relevant to the beneficiary’s claimed authority, not an attempt for the homeowner to be claiming rights or enforcement under the third party securitization documents.

 

36 Responses

  1. You have to read these …

    Electronic Tracking Agreements
    ◾Warehouse Lender
    ◾Gestation
    ◾Whole Loan

    QA Plan template

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

  2. Look at it from the other guys shoes here … must read sample DOT with definitions. Oh boy … read it closely. In two places it talks about two notes. DOT refers to Trustor/Grantors as Borrowers (even non borrowing Trustor/Grantors). Shhhht is Deep!
    Payment applied first to and then to … WTH

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

    .. Should I Join?

    Standard Membership: Lite and General Members
    ◾MERS® Residential Marketing Kit includes:
    ◾Brochure
    ◾Application form
    ◾Sample deed of trust

    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

  3. Once again, I have to say beware of Steinberger despite its pleasant (so far) outcome for Steinberger. For those of you who didn’t read it,
    she filed a QT and named her original lender, who didn’t respond, and she got a default judgment and an order clearing her title of the dot. She didn’t name or notify MERS when she filed her qt action. Later (supposedly) MERS got wind and filed suit to 86 her quiet title. The court ruled that as an agent, MERS had no right to notice; only the principal (the orig lender) did, akin to that case in Kansas, was it (Landmark?). So, if I (me, not you) were in that juris just now and MERS still showed in public record, I’d follow suit, file a qt, and hopefully have the same result. I haven’t read MERS’ complaint or anything out of them, but it seems they didn’t argue they are anyone else’s agent. I don’t know that it would have mattered if they did. I think not. That’s a risk in not recording one’s interest and why certain debtors and bk trustees may avoid unrecorded interests (which the banksters are trying to get nixed).
    But what I don’t like about the case is that the court said the orig lender was the true ben, since MERS is just an “agent”. I believe if MERS is merely an agent, then no beneficiary is named in the dot, only its agent, an agent with no ben interest in the dot (or the note). In order to say that the orig lender is the ben, the court was making / drawing an unwarranted legal conclusion imo, because the only way to find the orig lender,who was not named as the ben, the ben is if there is a finding that the orig note payee, lender, is the ben “by default” or some such. I just don’t think that’s a reasonable finding when it’s also poss there is no ben, only an agent of one. Anyway, something is bugging me about that case. First MERS was thee ben, then came the Consent Order, so then MERS was an agent. MERS says it may transfer the beneficial interest found in a dot (and has alleged to do so millions of times).
    If MERS were thee ben, it could, but not so if it’s an agent and the alleged agency is created in and by the dot (which imo it isn’t). Even if the dot says MERS may do this and that (and that passes muster for the creation of agency, which it doesn’t), no where does it say MERS may transfer the beneficial interest in the dot. Transferring interest is not an act of foreclosure (f/c – which MERS said they could do – based on the language in the dot). The borrower signing the dot can’t create someone else’s agency. The only thing his signature is good for is demonstrating that he was told something which is alleged to be true by the teller. And it may be true, but not because he signed the dot. If it’s true, the agency was created in another document. (take 10 – “implied” agency is not lawfully recognized when it comes to interests, duties, or rights in real property. That’s why your listing agent insisted on a writing and it’s mol why an easement, say, requires a writing). I still believe MERS was thee ben, just like they started off saying when the first few million homes were taken, which makes the note and dot bifurcated and imo, fatally so. The court in Steinberger also went on about the note and dot being two distinct instruments. Sort of true, but for a mortgage loan, you can’t have one without the other. In other words, but for the dot, the lender would have only an unsecured note. This implicates the “security first” laws in many states, for one thing. The idea there is that a mtg lender must pursue the collateral first, before turning to personal liability of the loan, and then only where it’s a “recourse” loan. Mostly, or at least a lot, these loans are non-recourse (remedy for breach is limited to the collateral), and that is a distinct benefit to the borrower, who then doesn’t have to worry about his savings or porsche or the inheritance he just got. Some states have anti-deficiency statutes, meaning no deficiency judgment may be gotten against the borrower. A deficiency only arises when the coll doesn’t satisfy what’s owed on the mtg loan, a situation which itself arises because a mtg lender must look to the “security first”, meaning he needs the dot as well as the note. So there’s something troublesome about the court’s recitation about the two instruments, as if they may survive independently. Maybe they can, but they can’t be enforced one without the other. The evidence of this is that no lender has ever sought (that I know of) a personal judgment against a borrower as the lender’s first course of action for breach – they go after the property first – always. I maybe haven’t put my finger on it, but I guess after all the stunts we’ve been witness to, my gut told me
    Steingberger isn’t all good, like it was a test case for the you-know-whos or like that. Maybe I just need to read it again……

  4. Poppy I get what your saying and it not impossible but that the bank got $200,000 dollars for a $100,000 closing has nothing to do with the $100,000 borrowed by the homeowner who is purchasing the house, because the loan does not close unless the seller of the property is also paid and is why there is only one closing for both ends.

    Now the bank/mortgage company has a problem criminally as they falsely represented the collateral. The line of credit is a line of credit and was not for a certain loan but for loans and there was a repayment agreement, but the lender is the company that made the loan and not the company that extended the line of credit.

    I see builder get more than one 1st place construction loan on a home they were building and when they were caught the builder allegedly committed suicide.

  5. jg this is one of the places I browsed:
    http://www.brookstonelaw.com/mers.html

    Still looking in archives….

  6. I will make an attempt to find it jg, but it has been a while and because I am not dealing with MERS, I may not have saved it. But I usually save most things. I’ll look.

  7. The bank does it all the time Charles…and FYI: I am not fighting the argument I am discussing, okay Charles?

    Think: New Century borrowed lines of credit…example: one for $100,000,000.00; used the money for running the company, that’s a FACT…never used it to fund loans. but they did get commitments to buy them, the notes…now remember; (multiple copies of notes have been made) and the super sale of the century begins of the long term value of this paper; come one, come all, this is a great investment folks…(the loans closed, but did not fund) LOL. So, one lender gives you $100,000,000.00, then investors give you, $150,000,000.00 say, you now have $250,000,000.00, the notes are no good, never put into a trust (even though they entered info to the SEC files) cause they cannot be, they are duds…unfunded, underfunded, or non-performing. The repurchase agreements kick in, and the “borrowing” company, is broke and committing fraud. They file bankruptcy to protect “themselves” from creditors (another scam)….the only option left for anyone are servicing platforms…they have to lie to collect. Give the illusion the loans ARE perfected, by using original (copies) of your paperwork to enforce the contract! Very, very simple…oh and you must be sure to move the cash away from your company; say to a subsidiary, or a wire transfer, Caymans?

    Then you have fractional lending…making money on debt. You have been in banking, right?

    $1,000,000.00 loan, makes you $1,900,000.00 right off the rip, then multiply over and over, based on the amount of debt.

  8. poppy at 3:04 – will you please send me that (those?) transcripts or link it (them)? thanks

  9. Until these attorney understand that no one but a lender authorized to lend can own the mortgage loan debt. There no need to address a trust because the trust cannot and does not collect home mortgage payments as they are not lenders and have not financial interest in the loans…..Period!

  10. Oh my Heavens, Its cold outside and I’m telling stories again.
    Outloud

    Just one last tip ….
    Security Guards are a lot of work, you have to feed them, provide them with drinks, entertain them, and let them out to PEE!

    Many Blessings to All!

  11. All I need is you to say this Party is this and that (instead of me) and give them certain rights and immunity with impunity ..
    Oh that homestead exemption waiver … that’s nothing to worry about. Your spouse joint in entirety .. yeah him/her the non borrower, we need them to sign and agree to this to. I’m sure that shouldn’t be a problem for you …. after all .. your car rides on it.

    ROFLMBO

  12. But you can still Trust Me! I wouldn’t Lie (I just don’t give all the facts).

    Trust Me … We can fix this with a loan mod.

    *Smiles*

  13. Just do your duties as the Trustee of the Land Trust and you should fare Well. you know .. taxes, plates and ins and such …

    My partner in Crime got Busted…. and cant be Trusted.

  14. RE: When I say …

    “You signed the Title to the car over to a Trust … where I made myself beneficiary of the Trust”
    and
    ” The (Warranty Deed) I got you to sign names me as the Grantee?”

    I could be a look alike name LLP I own/have partnership with.
    Just saying …. I issued things in this .. another my name ….. Right?

  15. Duct” Incoming Snowball … held by dirty hands.. aka a dirty snowball!

    You signed the Title to the car over to a Trust … where I made myself beneficiary of the Trust.

    The (Warranty Deed) I got you to sign names me as the Grantee?

    Shhhh … I didn’t file it in public records … so nobody knows except me and my nutbuttys.

  16. Take #2 with corrections ….

    I have a line of credit, I use cash to buy you a car and you promise to pay me back on payments, we have a written contract. I title the car to you and don’t put a lien on it. You transfer the title into trust with my permission. No DOS clause available to me anymore …….

    I file bk, or maybe I just cant pay or don’t want too pay the line of credit and the line of credit is charged off by my creditor.

    Can I continue to collect payments from you for the car?
    Can my creditor come after you or the collateral?
    Who gets to keep the BK remote car?

    Or does the car just go unclaimed and escheat to the state?

    I know nothing .. I just think out loud to much. 🙂

  17. Poppy its impossible if your buying a home to have a closing without funding as the seller needs there monies. You cannot go to the store and take and buy a loaf of bread without monies.

    Listen to your argument that your are telling the judge that no monies exchanged had to purchase the property, instead of yes you borrowed monies but that contract was voided due to reasons. However if the seller got no monies how do you own the property?

    Your agreement was not for your down payment as the only source of monies. What made the seller turn over the property if they did not received the full amount of the sale price.

    Don’t go down this rabbit hole!

  18. I have a line of credit. I buy you a car and you promise to pay me back on payments, I title the car to you and don’t put a lien on it.

    I file bk, or maybe I just cant pay or don’t want too pay the line of credit and the line of credit is charged off by my creditor.

    Can I continue to collect payments from you for the car?
    Who gets to keep the car?

  19. Exactly…but MERS has not affected my case, at all…have read a boat load on it and sought out court transcripts from 2 cases. Interesting testimony by a “supposed” employee of MERS, who said she was assigned by MERSCorp, to no avail. The lawyer ate her up!

    That’s all I read…it is my opinion the judges are wrong when they say a “nominee” has power to assign and assign, by definition. I say baloney. IMO

  20. They used MERS to blurr the fact that the Estates were (NOT) held Free and Clear. to get the Triple AAA ratings.

    The liens were HELD off balance sheet and OFF Title. NO LIEN!

  21. Not fighting the non-funded trusts either…non issue. I have a closing with no funding, that’ s a fact, transcript of the court!

    Everything I say is documented, or I wouldn’t ramble on about it. My case is unlike most! Believe me

  22. “The seller who sold you your house is not involved with some phony money scheme, as they only for the $200,000 your purchase your home for so they can purchase the $400,000 they are purchasing”

    The seller did not lend the money Charles…and it was a foreclosure sale, Hint? Just saying…and how do you know that for sure?

    Let’s just say, I have my facts and figures and you have yours, related to your situation…Okay?

  23. I understand Poppy, but fighting the non funded trusts is the same thing. The trusts were not funded at closing.. but they are now. Don’t get led down that rabbit hole. Its already been filled up per say ….

    Charles .. my husband only got a Trustees Deed/legal title (not a Warranty Deed) made out to him and the deceased sellers attorney. The attorney was whited out and the Trustees Deed was granted by the Trustee/deceased sellers daughter/beneficiary. But that Butty attorney kept the deceased trust open for years after we bought the house. Yep! Yep! Holding our Equitable Title!!

    There was NO mortgage on this property, the deceased seller estate had paid it off years earlier before we purchased it.

    The Warranty Deed we granted into trust and( is unfiled) named the Plender’s LLC partner huh?

    Then I connect the dots between the Bad Bad Sellers Attorney, the Bad Bad FC attorney, the Capital Asset Co, … they all lead back to the same group of Bad Apples!

  24. KC I agree that when the property is purchase the homeowner get the warranty deed, and if the title is not correct the only thing the lender has is a non-secure loan at best!

    Poppy so the fund came from bank A when your doing business with a mortgage company….then one has to expect that the funds will come from a bank and not the mortgage companies.

    The Mortgage companies don’t have the ability to transfer this money through the treasury as they are not bank in the sense of having monies on hand, as it in what bank they are doing business with.

    The title companies are not in business hiding some secret funding. The seller who sold you your house is not involved with some phony money scheme, as they only for the $200,000 your purchase your home for so they can purchase the $400,000 they are purchasing, or the builder is needing his money to payoff the banks and workers that lent them the money and workers that did the work!

  25. Not fighting either KC…I’m at contracts and unlawful seizure…and making headway! What gave you the idea I was fighting MERS? Not even an issue KC. Way past that!

    Just commenting on what I’ve read.

  26. You’ve got the right party … but don’t forget to name all his known and unknown agents and partners Does..1 -100.

    Play Safe .. Use Protection .. *grins*

  27. Unless MERS of course transferred your intrest without your consent … that’s when you nail the ducks pecker down.
    Lawyer/MERs forger …..

  28. Poppy, you need to quit fighting MERS (yourself) and (yur) Trust. 🙂

    Enforce the Agreement ….. 🙂

  29. 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?

  30. Charles, you may be correct, but the vast majority of what I post, “in my situation” are verified by court transcripts or actual documents in my possession. I will say this: I am in the process of suing the closing attorney, as he is the conduit for all of this, IMHO.

    I will let you know if he can procure a receipt for the money wired. This behavior, again IMHO, supersedes, is prior, to the transfer/sales you discuss. Regards

  31. Poppy I believe your being lead down a rabbit hole because at your closing there was actual monies because you purchased a home, and the seller needed to be paid off, or if refinancing the balance needed to be paid off and cash was in some cases given out to you the borrowers.

    Depending on who lent you the monies, they may have been a mortgage company meaning they needed their bank to transfer the monies as a mortgage company does not have money sitting around like a bank. Mortgage companies your bank accounts just the same way as people.

    If you wired monies to somebody it through your bank or Western Union. You need to look for the separation of the Note and Debt or Title or both in order to get what you want. Because bank Z wired the monies means that the mortgage companies bank was bank Z!

  32. Your looking into the court record and you see bank A is in title (originator) or some other bank B-Z, and now Fannie or Freddie is at the court house purchasing that property at the foreclosure sale, which means the loan was placed into the pool without there being a transfer of monies, and they are covering up the crimes.

  33. The only thing I can add: after looking at my HUD and wiring paperwork…the only actual money at the closing table was mine and the sellers. The wire indicates money was put in the lawyers escrow account, but it is just a number via wire…there is no way to be sure of funds without an actual receipt from the sender, Deutsche Bank(my supposed funder, along with multiple named others). It is my opinion: no legitimate transfer of funds was received, rather IOU or some variation thereof? The contract is not complete if no “consideration” was properly received. Simple in concept, difficult to prove. So, before I even get to Ginnie and her pals Fannie and Freddie…the contract was breached, if no proof is provided for funding.

    Then too, the issue of the originator, as the lender….hogwash, particularly with the CW and New Century cats, lines of credit…not enough, when you borrow on behalf of another.

    IMHO too, the non-judicial hearing…what a joke. You at the very inception are denied your Fifth Amendment rights of refusal to answer, as that answer will incriminate you.

    All bullshit to me! Just my thoughts here, my eyes do not deceive me.

  34. Look we know in many of these cases (Ginnie Mae) that the loan Notes were transferred without out a purchase occurring, so we know for a fact that Ginnie Mae has no financial interest because they did not pony up any monies!

  35. And the lines of credit in the bankruptcy court e.g. New Century were paid, some 100%…while many were “intentionally” defaulted, while current on payments, then paid by insurance.

  36. First of all. the notes were funded with a Line of Credit used by the Plender and the notes didn’t make it to Trust because they were diverted to another party and converted for other uses. The Notes/Line of Credit were charged off in 2008.

    While the Title was stripped from the Estate and went another direction and was Liquidated.

    Sorta like cashing out equity on a Reverse Mortgage. ?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: