Another example of why a TILA audit is grossly inadequate. A forensic audit is required covering all bases. Although dated, this article picks up on a continuing theme that demonstrates the title defect, the questionable conduct of pretender lenders and the defects in the foreclosure process when you let companies with big brand names bluff the system. The MERS GAP arises whether MERS is actually the nominee on the deed of trust (or mortgage deed) or not. It is an announcement that there will be off record transactions between parties who have no interest in the loan but who will assert such an interest once they have successfullly fabricated documents, had someone without authority sign them, on behalf of an entity with no real beneficial interest or other economic interest in the loan, and then frequently notarized by someone in another state. we have even seen documents notarized in blank and forged signatures of borrowers on loan closing papers.
NYTimes.com
Lender Tells Judge It ‘Recreated’ Letters
Tuesday January 8, 2008 11:38 pm ET
By GRETCHEN MORGENSON
“These letters are a smoking gun that something is not right in Denmark,” Judge Agresti said in a Dec. 20 hearing in Pittsburgh.
The emergence of the fabricated documents comes as Countrywide confronts a rising tide of complaints from borrowers who claim that the company pushed them into risky loans. The matter in Pittsburgh is one of 300 bankruptcy cases in which Countrywide’s practices have come under scrutiny in western Pennsylvania.
Judge Agresti said that discovery should proceed so that those involved in the case, including the Chapter 13 trustee for the western district of Pennsylvania and the United States trustee, could determine how Countrywide’s systems might generate such documents.
A spokesman for the lender, Rick Simon, said: “It is not Countrywide’s policy to create or ‘fabricate’ any documents as evidence that they were sent if they had not been. We believe it will be shown in further discovery that the Countrywide bankruptcy technician who generated the documents at issue did so as an efficient way to convey the dates the escrow analyses were done and the calculations of the payments as a result of the analyses.”
The documents were generated in a case involving Sharon Diane Hill, a homeowner in Monroeville, Pa. Ms. Hill filed for Chapter 13 bankruptcy protection in March 2001 to try to save her home from foreclosure.
After meeting her mortgage obligations under the 60-month bankruptcy plan, Ms. Hill’s case was discharged and officially closed on March 9, 2007. Countrywide, the servicer on her loan, did not object to the discharge; court records from that date show she was current on her mortgage.
But one month later, Ms. Hill received a notice of intention to foreclose from Countrywide, stating that she was in default and owed the company $4,166.
Court records show that the amount claimed by Countrywide was from the period during which Ms. Hill was making regular payments under the auspices of the bankruptcy court. They included “monthly charges” totaling $3,840 from November 2006 to April 2007, late charges of $128 and other charges of almost $200.
A lawyer representing Ms. Hill in her bankruptcy case, Kenneth Steidl, of Steidl and Steinberg in Pittsburgh, wrote Countrywide a few weeks later stating that Ms. Hill had been deemed current on her mortgage during the period in question. But in May, Countrywide sent Ms. Hill another notice stating that her loan was delinquent and demanding that she pay $4,715.58. Neither Mr. Steidl nor Julia Steidl, who has also represented Ms. Hill, returned phone calls seeking comment.
Justifying Ms. Hill’s arrears, Countrywide sent her lawyer copies of three letters on company letterhead addressed to the homeowner, as well as to Mr. Steidl and Ronda J. Winnecour, the Chapter 13 trustee for the western district of Pennsylvania.
The Countrywide letters were dated September 2003, October 2004 and March 2007 and showed changes in escrow requirements on Ms. Hill’s loan. “This letter is to advise you that the escrow requirement has changed per the escrow analysis completed today,” each letter began.
But Mr. Steidl told the court he had never received the letters. Furthermore, he noticed that his address on the first Countrywide letter was not the location of his office at the time, but an address he moved to later. Neither did the Chapter 13 trustee’s office have any record of receiving the letters, court records show.
When Mr. Steidl discussed this with Leslie E. Puida, Countrywide’s outside counsel on the case, he said Ms. Puida told him that the letters had been “recreated” by Countrywide to reflect the escrow discrepancies, the court transcript shows. During these discussions, Ms. Puida reduced the amount that Countrywide claimed Ms. Hill owed to $1,500 from $4,700.
Under questioning by the judge, Ms. Puida said that “a processor” at Countrywide had generated the letters to show how the escrow discrepancies arose. “They were not offered to prove that they had been sent,” Ms. Puida said. But she also said, under questioning from the court, that the letters did not carry a disclaimer indicating that they were not actual correspondence or that they had never been sent.
A Countrywide spokesman said that in bankruptcy cases, Countrywide’s automated systems are sometimes overridden, with technicians making manual adjustments “to comply with bankruptcy laws and the requirements in the jurisdiction in which a bankruptcy is pending.” Asked by Judge Agresti why Countrywide would go to the trouble of “creating a letter that was never sent,” Ms. Puida, its lawyer, said she did not know.
“I just, I can’t get over what I’m being told here about these recreations,” Judge Agresti said, “and what the purpose is or was and what was intended by them.”
Ms. Hill’s matter is one of 300 bankruptcy cases involving Countrywide that have come under scrutiny by Ms. Winnecour, the Chapter 13 trustee in Pittsburgh. On Oct. 9, she asked the court to sanction Countrywide, contending that the company had lost or destroyed more than $500,000 in checks paid by homeowners in bankruptcy from December 2005 to April 2007.
Ms. Winnecour said in court filings that she was concerned that even as Countrywide had misplaced or destroyed the checks, it levied charges on the borrowers, including late fees and legal costs. A spokesman in her office said she would not comment on the Hill case.
O. Max Gardner III, a lawyer in North Carolina who represents troubled borrowers, says that he routinely sees lenders pursue borrowers for additional money after their bankruptcies have been discharged and the courts have determined that the default has been cured and borrowers are current. Regarding the Hill matter, Mr. Gardner said: “The real problem in my mind when reading the transcript is that Countrywide’s lawyer could not explain how this happened.”
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: borrower, countrywide, disclosure, foreclosure defense, foreclosure offense, fraud, rescission, RESPA, TILA audit, trustee |
what was the settlement offer? I have 2 on these Linda Greens brewing..
Another DOCX Assignment of Mortgage for everyone…
http://mylandrecords.appspot.com/pdf/ma015-10019-113/aYLuv7LoxI3/assignment.pdf?actual=1263440326
I will post my assignment on this site as soon as I receive it back from our Attorney once we are completed with our Quiet Title Action against Deutsche/AHMSI
Sirrowan: GREAT POINT! The answer is that if they have a user ID and password ANYONE can become a “limited signing officer” for MERS. Sometimes they say they are vice-president, sometimes they use some other official title. But the fact remains that they have no connection with MERS, no employment with MERS, no access to MERS records, and definitely no direct grant of a POA (Power of attorney). It’s a game. This is why I have repeatedly said that in every securitized chain, particularly in the case of a MERS chain, there are one or more documents that are fabricated, forged or voidable. Whether this rises the level of criminality is up to future courts to determine. One thing is sure — a party who signs a document that has no authority to sign it in the capacity they are representing has just committed violations of federal and state statute and common law. And the Notary who knew the party was not authorized as represented has committed a violation as well. Most states have statutes that say a bad notarization renders the document void, even if it was recorded. This breaks the chain of title and reverts back to the originating lender (at best) or voids the documents in the originating transaction (at worst). In either event, the distinction I draw between the obligation (the substance of the transaction caused by the funding of a “loan product”) and the note (which by law is ONLY EVIDENCE of the obligation and the mortgage which is ONLY incident to the note, becomes very important. If the documents (note and mortgage or void then all we have left is the obligation, unsecured and subject to counterclaims etc. MOST IMPORTANT procedurally, it requires a lawsuit by the would-be forecloser in order to establish the terms of the obligation and the security, if any. This means they must make allegations as to ownership of the receivable and prove it — the kiss of death for all would be lenders except investors who funded these transactions.
I just thought of something. I was reading what was posted a few above me regarding MERS own rules. They claim that their “officers” tend to act without authority from MERS and they do not use any records held by MERS etc.
How can this be? How can they be officers then? They aren’t if you ask me. Now wonder all these judges are telling them they are nothing but agents if even that, lol.
But if they were officers, wouldn’t MERS be liable for the actions of their “officers” on behalf of MERS?
I posted docs with sigs from green and others at DOCX onto scribb site,
http://www.scribd.com/documents#folder/134567
Marie…
You will find multiple assignments when you go to http://www.google.com and put “DOCX” and “Linda Green” in your search or “DOCX” “Ron Meharg” or also “DOCX” “Tywanna Thomas” or “DOCX” “Assignment”
We are currently in litigation for the Quiet Title portion as well so everything is with our Attorney…
I hope this helps!!!
Dear Tracee and Neil,
I need evidence that Linda Green works for DOCX. Can you please e-mail me all of the Assignments or other documents bearing her signature ASAP?
This evidence is needed for litigation purposes.
Many thanks,
Marie
I need a foreclosure defense attorney in Wilkes Barre or Scranton, PA who is willing to represent me in a bankruptcy case, or guidance on how to take them down in Court.
Deutsche Bank filed the complaint, received a default judgment, then the same attorney who filed the complaint name was also on the assignment for recording, after he verified that the information in the complaint was true and that the plaintiff owned the mortgage. The assignement was executed one day after the judgment was received and it was filed about a month later. I addressed the issue in state court but the Judge said “you didn’t pay your mortgage”. The QWR I sent to the servicing agent — in their reply produced so much fraud that I was grateful in receiving such documents.
The Forensic audit proved more Federal, state, TILA and banking violations. I want to get them in the Bankruptcy court but the attorney I hired on the stern suggestion of the Judge has withdrawn due to the fact we have a difference of opionion. He doesn’t see the fraud. He said no harm was done by the forged signature on the documents they presented, because I applied for the mortgage and received it and did sign the other documents.
I had been representing myself, but need to file the proper documents in the timeframe and order required, with the proper wording, etc. I would like them to produce the note and the complete chain. I have a hearing on October 29, 2009 because I had objected to the proof of claim.
Is there any honest bankruptcy/consumer law attorney in this area. This loan is a subprime, predatory loan and it was rescinded when I found the violations. They didn’t even response to the rescission, and I have them as an unsecured debt, but somehow, the other loan with Wells Fargo was granted a relief from stay as an unsecured debt.
Hope to hear from a competent, aggressive person who has filed a motion to produce documents and was successful., or an attorney who gets it.
Thanks
The tide is definitely turning…I have found “assignments” with both Linda Green et al. prepared by DOCX all the way back to 2004…
We are now filing our Quiet Title Action. We had our mortgage discharged in Chapter 7. We defeated their motion to lift the stay by proving the assignment to Deutsche was a forgery , and now Deutsche is trying a different servicer to foreclose on us after the discharge…they are also now in violation of the discharge by sending collection letters on a debt we are no longer responsible for!!! They screwed themselves when they recorded this forged assignment trying to show ownership of something they never had and now they cannot further assign what they do not have. They have gotten what they deserve…absolutely nothing!!!
John,
Here is Tywanna again on another assignment.
http://mylandrecords.appspot.com/pdf/ma025-44848-315/a9ka5zh0q9O/assignment.pdf?actual=1253729559
In my case I have found my “vice presidents” on hundreds of assignments from all different “lenders”…
What makes mine interesting is they are employees of JPMorgan Chase assigning the mortgages over to JPMorgan Chase to process the foreclosure…
4closureFraud
Tracee,
Could you send me a copy of the assignment you wrote about in post.
“As we all know, Ameriquest went bye bye in 2007, yet they “assigned” our securitized mortgage via Citi as “limited” POA in March 2009 to Deutsche when the loan was 5+ months “delinquent”. Linda Green and Tywanna Thomas signed as “Vice President” and “Assistant VP” for Ameriquest based out of California and the company DOCX based in Alpharetta Georgia”
Now she ast VP for Quick Loan Funding.
John Anderson jandersonpaper@yahoo.com
Is it un-ethical or fraud if the loan servicer, who mis-approprated mortgage payments, endorses an assignment of mortgage as assitant vice president of loan servicing corp, as MERS
Tracee,
Congrats. That is great news. I am working on trying to get my default judgment set aside. I filed my motion yesterday, showing the fraud in the assignment of mortgage, and proving they do not own the note. Will inform what the outcome is, I may have to go to court of appeals. This site has helped big time. God bless Neil and all who have been posting
Kevin
WE DID IT!!!!!!!!!!!! After Deutsche filed a continuance of their motion to lift the stay last month, we were all set to go before the judge tomorrow and they withdrew their case this afternoon!!!!!!!!!!!!!!! My husband and I are still pinching ourselves and cannot believe we took this on and won!!!!!I will keep you posted on our Quiet Title Action/counterclaim for damages!!!!!!
THANK YOU NEIL!!!!!!!!!!!!!!!!!!!!!!!!!
Tracee Beecroft
Under R.I. Law it is my opinion that any purported action in the name of MERS is a break in the chain of title and is void. The customized form of Mortgage deed utilized by the Mortgage Electronic Registrations Systems Inc., (MERS), Paragraph C and the grantee clause in particular, is not entitled to any of the R.I. statutory mortgagee protections provided in the provisions of Title 34 of the R.I. General Laws. A “Nominee” “Mortgagee” is simply not entitled to the statutory benefits of Title 34. Those provisions are strictly construed against MERS putative conveyance since the statutory provisions are in derogation of common law. For example, MERS mortgagee deeds have two entities exercising the same statutory foreclosure powers. R.I. law only protects the actual “holders” of the mortgage deed or their statutory “assigns ”, not “nominees” which nominees only have a role with stocks and bonds. MERS argues, in a futile exercise of nominalism, that splitting the term “mortgagee” from the “lender” has a benefit to itself. MERS mortgage deeds are defective because the R.I. Statutory protections run to functional powers of the “holders” of the mortgage and of the mortgage notes, not to self defined “nominees”.Nominees are not eligible to hold future interests in property without statutory assignments. Only R.I. statutory assignees can exercise the functional abilities necessary to gain control of the five (5) statutory elements required to provide a clean title at the end of the process. R.I. Statutory protections run to the “holders” of the mortgages, not their nominees. The provisions of R.I.G.L.§34-11-12 (4) on mortgage deeds, R.I.G.L.§ 34-11-12 (5) on mortgage releases, R.I.G.L.§ 34-11-12 (6) on form assignments, R.I.G.L.§ 34-11-12 (7) on foreclosure powers, and R.I.G.L.§ 34-11-12 (8) on sale powers ONLY protect the “holders” of the mortgage, not their putative “nominees”. . When MERS does not have an actual separate written and recorded conveyances from the actual holder of the mortgage to itself prior to MERS making a conveyance, the conveyance is void. MERS by its own description in paragraph C is not contractually able to perform the statutory functions of the “holder” of the mortgagee. Mortgage Electronic Registration System Incorporated, as a putative nominee, selected by the Mortgagor, usually lacks actual recorded authority from the Holder of the Mortgage by way of a recorded assignment (R.I.G.L.§ 34-11-12 (6)) or a recorded power of an attorney. Mortgage Electronic Registration System Incorporated can not be by its own definition by be a “holder” of the mortgage deed. Mortgage Electronic Registration System Incorporated did not own or possess or control the mortgage note which was necessary to enforce the mortgage deed. R.I.G.L§ 6A-3-301.
adam..
btw did you spot this fraud & object?
if so nice job!
adam
good4u!!!!!
“As the Affidavit was prepared by the attorneys for the lender, they should be accountable for some part of the fraud.”
this is perjury if i’m not mistaken…
did the court make mention of action re; fraud?
if no action was mentioned the very least report them to the state bar .
Neil,
I had an idea but I am not sure how to go about it – in a Chapter 13 proceeding – would it be possible to obtain the names of John Does 1-100, owners of mortgage backed securities, by adding Does-1000 addressed to the attorney representing the pretender lender? And then somehow – maybe an Adversary Proceeding – forcing him to disclose who John Does are, and providing evidence of a lack of standing claim? Just a seed of an idea that needs nourishment and water ……
I just got a motion for relief from stay Denied pro se in Western Washington Bankruptcy court because the lender fabricated an Allonge, it was simple to prove as the series of certificates prospectus from the SEC 10K filling should the cut of date as January 30, 2006, therefore the note had to be in the series before they offered them for sale. The Allonge was in favor of The Bank Of New York Mellon, which did not exist prior to 2007. Hence the Allonge was fabricated, which meant the affiant lied about it being a true copy of the original document used in the normal course of business, hence there was a lack of trustworthiness and consequently the affidavit was inadmissible, creating a lack of standing.
As the Affidavit was prepared by the attorneys for the lender, they should be accountable for some part of the fraud.
I wrote this on another page because I can’t figure out the best place to put it. The AZ state attorney General Terry Goddard sounds like he is fed up with the banks not modifying loans like they promised. Maybe you can educate him on the “produce the Note” theory and we can become the first State to have a law that would stop all foreclosures unless the lender first produces the note and proves that they have standing. This is better than each homeowner having to find an attorney or fight golliath be themselfs.
MERS
Basic Corporate Information
•MERS is incorporated within the State of Delaware.
•MERS was first incorporated in Delaware in 1999.
•The total number of shares of common stock authorized by MERS’ articles of incorporation is 1,000.
•The total number of shares of MERS common stock actually issued is 1,000.
•MERS is a wholly owned subsidiary of MERSCorp, Inc.
•MERS’ principal place of business at 1595 Spring Hill Road, Suite 310, Vienna, Virginia 22182
•MERS’ national data center is located in Plano, Texas.
•MERS’ serves as a “nominee” of mortgages and deeds of trust recorded in all fifty states.
•Over 50 million loans have been registered on the MERS system.
•MERS’ federal tax identification number is “541927784”.
The Nature of MERS’ Business
•MERS does not take applications for, underwrite or negotiate mortgage loans.
•MERS does not make or originate mortgage loans to consumers.
•MERS does not extend any credit to consumers.
•MERS has no role in the origination or original funding of the mortgages or deeds of trust for which it serves as “nominee”.
•MERS does not service mortgage loans.
•MERS does not sell mortgage loans.
•MERS is not an investor who acquires mortgage loans on the secondary market.
•MERS does not ever receive or process mortgage applications.
•MERS simply holds mortgage liens in a nominee capacity and through its electronic registry, tracks changes in the ownership of mortgage loans and servicing rights related thereto.
•MERS© System is not a vehicle for creating or transferring beneficial interests in mortgage loans.
•MERS is not named as a beneficiary of the alleged promissory note.
Ownership of Promissory Notes or Mortgage Indebtedness
•MERS is never the owner of the promissory note for which it seeks foreclosure.
•MERS has no legal or beneficial interest in the promissory note underlying the security instrument for which it serves as “nominee”.
•MERS has no legal or beneficial interest in the loan instrument underlying the security instrument for which it serves as “nominee”
•MERS has no legal or beneficial interest in the mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
•MERS has no interest at all in the promissory note evidencing the mortgage indebtedness.
•MERS is not a party to the alleged mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
•MERS has no financial or other interest in whether or not a mortgage loan is repaid.
•MERS is not the owner of the promissory note secured by the mortgage and has no rights to the payments made by the debtor on such promissory note.
•MERS does not make or acquire promissory notes or debt instruments of any nature and therefore cannot be said to be acquiring mortgage loans.
•MERS has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.
•MERS does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).
•MERS has no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.
•The note owner appoints MERS to be its agent to only hold the mortgage lien interest, not to hold any interest in the note.
•MERS does not hold any interest (legal or beneficial) in the promissory notes that are secured by such mortgages or in any servicing rights associated with the mortgage loan.
•The debtor on the note owes no obligation to MERS and does not pay MERS on the note.
MERS’ Accounting of Mortgage Indebtedness / MERS Not At Risk
•MERS is not entitled to receive any of the payments associated with the alleged mortgage indebtedness.
•MERS is not entitled to receive any of the interest revenue associated with mortgage indebtedness for which it serves as “nominee”.
•Interest revenue related to the mortgage indebtedness for which MERS serves as “nominee” is never reflected within MERS’ bookkeeping or accounting records nor does such interest influence MERS’ earnings.
•Mortgage indebtedness for which MERS serves as the serves as “nominee” is not reflected as an asset on MERS’ financial statements.
•Failure to collect the outstanding balance of a mortgage loan will not result in an accounting loss by MERS.
•When a foreclosure is completed, MERS never actually retains or enjoys the use of any of the proceeds from a sale of the foreclosed property, but rather would remit such proceeds to the true party at interest.
•MERS is not actually at risk as to the payment or nonpayment of the mortgages or deeds of trust for which it serves as “nominee”.
•MERS has no pecuniary interest in the promissory notes or the mortgage indebtedness for which it serves as “nominee”.
•MERS is not personally aggrieved by any alleged default of a promissory note for which it serves as “nominee”.
•There exists no real controversy between MERS and any mortgagor alleged to be in default.
•MERS has never suffered any injury by arising out of any alleged default of a promissory note for which it serves as “nominee”.
MERS’ Interest in the Mortgage Security Instrument
•MERS holds the mortgage lien as nominee for the owner of the promissory note.
•MERS, in a nominee capacity for lenders, merely acquires legal title to the security instrument (i.e., the deed of trust or mortgage that secures the loan).
•MERS simply holds legal title to mortgages and deeds of trust as a nominee for the owner of the promissory note.
•MERS immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.
•The investor continues to own and hold the promissory note, but under the MERS® System, the servicing entity only holds contractual servicing rights and MERS holds legal title to the mortgage as nominee for the benefit of the investor (or owner and holder of the note) and not for itself.
•In effect, the mortgage lien becomes immobilized by MERS continuing to hold the mortgage lien when the note is sold from one investor to another via an endorsement and delivery of the note or the transfer of servicing rights from one MERS member to another MERS member via a purchase and sale agreement which is a non-recordable contract right.
•Legal title to the mortgage or deed of trust remains in MERS after such transfers and is tracked by MERS in its electronic registry.
Beneficial Interest in the Mortgage Indebtedness
•MERS holds legal title to the mortgage for the benefit of the owner of the note.
•The beneficial interest in the mortgage (or person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note and/or servicing rights thereunder.
•MERS has no interest at all in the promissory note evidencing the mortgage loan.
•MERS does not acquire an interest in promissory notes or debt instruments of any nature.
•The beneficial interest in the mortgage (or the person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note (NOT MERS).
MERS As Holder
•MERS is never the holder of a promissory note in the ordinary course of business.
•MERS is not a custodian of promissory notes underlying the security instrument for which it serves as “nominee”.
•MERS does not even maintain copies of promissory notes underlying the security instrument for which it serves as “nominee”.
•Sometimes when an investor or servicer desires to foreclose, the servicer obtains the promissory note from the custodian holding the note on behalf of the mortgage investor and places that note in the hands of a servicer employee who has been appointed as an officer (vice president and assistant secretary) of MERS by corporate resolution.
•When a promissory note is placed in the hands of a servicer employee who is also an MERS officer, MERS asserts that this transfer of custody into the hands of this nominal officer (without any transfer of ownership or beneficial interest) renders MERS the holder.
•No consideration or compensation is exchanged between the owner of the promissory note and MERS in consideration of this transfer in custody.
•Even when the promissory note is physically placed in the hands of the servicer’s employee who is a nominal MERS officer, MERS has no actual authority to control the foreclosure or the legal actions undertaken in its name.
•MERS will never willingly reveal the identity of the owner of the promissory note unless ordered to do so by the court.
•MERS will never willingly reveal the identity of the prior holders of the promissory note unless ordered to do so by the court.
•Since the transfer in custody of the promissory note is not for consideration, this transfer of custody is not reflected in any contemporaneous accounting records.
•MERS is never a holder in due course when the transfer of custody occurs after default.
•MERS is never the holder when the promissory note is shown to be lost or stolen.
MERS’ Role in Mortgage Servicing
•MERS does not service mortgage loans.
•MERS is not the owner of the servicing rights relating to the mortgage loan and MERS does not service loans.
•MERS does not collect mortgage payments.
•MERS does not hold escrows for taxes and insurance.
•MERS does not provide any servicing functions on mortgage loans, whatsoever.
•Those rights are typically held by the servicer of the loan, who may or may not also be the holder of the note.
MERS’ Rights To Control the Foreclosure
•MERS must all times comply with the instructions of the holder of the mortgage loan promissory notes.
•MERS only acts when directed to by its members and for the sole benefit of the owners and holders of the promissory notes secured by the mortgage instruments naming MERS as nominee owner.
•MERS’ members employ and pay the attorneys bringing foreclosure actions in MERS’ name.
MERS’ Access To or Control Over Records or Documents
•MERS has never maintained archival copies of any mortgage application for which it serves as “nominee”.
•In its regular course of business, MERS as a corporation does not maintain physical possession or custody of promissory notes, deeds of trust or other mortgage security instruments on behalf of its principals.
•MERS as a corporation has no archive or repository of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
•MERS as a corporation is not a custodian of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
•MERS as a corporation has no archive or repository of the deeds of trust or other mortgage security instruments for which it serves as nominee.
•In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the promissory notes secured by the mortgage security instruments for which it serves as nominee.
•In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the mortgage security instruments for which it serves as nominee.
•Copies of the instruments attached to MERS’ petitions or complaints so not come from MERS’ corporate files or archives.
•In its regular course of business, MERS as a corporation does not input the promissory note or mortgage security instrument ownership registration data for new mortgages for which it serves as nominee, but rather the registration information for such mortgages are entered by the “member” mortgage lenders, investors and/or servicers originating, purchasing, and/or selling such mortgages or mortgage servicing rights.
•MERS does not maintain a central corporate archive of demands, notices, claims, appointments, releases, assignments, or other files, documents and/or communications relating to collections efforts undertaken by MERS officers appointed by corporate resolution and acting under its authority.
Management and Supervision
•In preparing affidavits and certifications, officers of MERS, including Vice Presidents and Assistant Secretaries, making representations under MERS’ authority and on MERS’ behalf, are not primarily relying upon books of account, documents, records or files within MERS’ corporate supervision, custody or control.
•Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf, do not routinely furnish copies of these affidavits or certifications to MERS for corporate retention or archival.
•Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf are not working under the supervision or direction of senior MERS officers or employees, but rather are supervised by personnel employed by mortgage investors or mortgage servicers.
kevin
if its not an issue can you post the research you did on mers…the more eyes the more minds the better the chances of detecting a vulnerability or possible area of attack,
[*1]
Mortgage Elec. Registration Sys., Inc. v Holmes
2009 NY Slip Op 51656(U)
Decided on July 28, 2009
Supreme Court, Suffolk County
Whelan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 28, 2009
Supreme Court, Suffolk County
Mortgage Electronic Registration Systems, Inc., Plaintiff,
against
Theodore G. Holmes, Suffolk County Clerk, Defendants.
08-43815
ROSICKI, ROSICKI & ASSOC.
Attys. For Plaintiff
26 Harvester Ave.
Batavia, NY 14020
THEODORE G. HOLMES
Defendant Pro Se 214 Huntington Dr.
Mastic Beach, NY 11951
CHRISTINE MALAFI, ESQ.
Atty. For Def., County Clerk
100 Veterans Mem. Hwy.
Hauppauge, NY 11788
Thomas F. Whelan, J.
It is, ORDERED that this motion (#001) by the plaintiff for entry of a default judgment on the complaint served in this action for declaratory relief is considered under RPAPL Article 15 and CPLR 3215 and is denied.
The plaintiff commenced this action for a judgment setting aside the March 11, 2008 mortgage satisfaction it purportedly issued by mistake, which was recorded in the Office of the County Clerk on April 7, 2008. The plaintiff also demands a judgment declaring the mortgage to be a valid and subsisting lien as of its April 7, 2008 recording date. By the instant motion, the plaintiff seeks a default judgment against the defendants named in the caption, neither of whom appeared by answer in response the plaintiff’s service of its summons and complaint. For the reasons set forth below, the motion is denied.
It is a well established principle of equity that a lien affecting real property, satisfied through mistake or fraudulent acts of inducement, may be restored to its original status and priority provided that no injury or prejudice is inflicted upon anyone who innocently relied upon the discharge and either purchased the property or made a loan thereon in reliance upon the validity of said satisfaction (see Regions Bank v Campbell, 291 AD2d 437, 737 NYS2d 636 [2d Dept 2002] [satisfaction piece issued by mistake]; Matter of Barclays Bank of New York, 96 AD2d 594, 464 NYS2d 1016 [2d Dept 1983]; Matter of Ditta, 221 NYS2d 34 [Sup.Ct. Kings County 1961]; see also Merritt v Merritt, 47 AD3d 689, 849 NYS2d 888 [2d Dept 2008] [issuance of satisfaction piece fraudulently induced]; Emerson Hills Realty, Inc .v Mirabella, 220 AD2d 717, 633 NYS2d 196 [2d Dept 1995]; Goldstein v Gold, 106 AD2d 100, 483 NYS2d 375 [2d Dept 1984]; aff’d 66 NY2d 624, 495 NYS2d 32 [1985]). A mortgage lien discharged of record by the recording of a satisfaction piece issued by mistake or inadvertence is thus voidable. Accordingly, a mortgagee seeking judicial restoration of a satisfaction piece issued by mistake and/or inadvertence must demonstrate that such restoration “does not interfere or affect the rights of others which may have accrued subsequent to the erroneous discharge” (Matter of Ditta, 221 NYS2d 34, supra ).
It is equally well established that to be entitled to a default judgment, the movant must establish the existence of facts which constitute cognizable claims for the relief demanded (see CPLR 3215[f]; Resnick v Lebovitz, 28 AD3d 533, 813 NYS2d 480 [2d Dept 2006]; Beaton v Transit Fac. Corp., 14 AD3d 637, 789 NYS2d 314 [2d Dept 2005]). While the proof required [*2]on an application for a default judgment is not as exacting as that required for a successful summary judgment motion, some first hand confirmation of the facts constituting the plaintiff’s claims against one or more defaulting defendants is required to be set forth in a verified complaint or in an affidavit by the plaintiff or other person possessed of personal knowledge of said facts (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 760 NYS2d 727 [2003]; Cohen v Schupler 51 AD3d 706, 856 NYS2d 870 [2d Dept 2008]).
A review of the plaintiff’s moving papers, including the complaint attached thereto, reveals that the plaintiff failed to meet this standard. The complaint is verified by plaintiff’s counsel and the affidavit of merits attached to the moving papers does not include factual assertions from which this court might ascertain that the plaintiff possesses cognizable claims for the judicial expungement of the subject mortgage satisfaction piece by reason of mistake (see CPLR 3215[f]). In this regard, the court notes that the record reflects that the mortgage satisfied by the subject satisfaction piece was consolidated with a subsequent mortgage and that said consolidated mortgage was recorded prior to the issuance of the subject satisfaction piece. These facts cast substantial doubt upon the plaintiff’s unsubstantiated claim that the satisfaction piece at issue was issued by mistake and/or inadvertence.
More importantly, however, it is apparent that the plaintiff failed to demonstrate that it has joined, as party defendants to this action, all persons who acquired rights or interests in the subject premises subsequent to the recording of the subject satisfaction piece and prior to the plaintiff’s filing of its notice of pendency. The complaint served and filed herein contains no allegations that all persons possessing rights or interests which may be adversely affected by the granting of the relief demanded, be they known or unknown to the plaintiff, have been joined as party defendants. In addition, there are no allegations that there are no such persons in being. In the absence of such allegations and some first hand confirmation thereof, this court is unable to ascertain whether jurisdiction over all persons whose rights and interests may be adversely affected has been acquired.
A judgment rendered without personal jurisdiction over all necessary parties affords incomplete relief and may be subject to direct and/or collateral attacks by those not joined whose rights and interests were adversely affected thereby (see Royal Zenith Corporation v Continental Insurance Company, 63 NY2d 975, 483 NYS2d 993[1984]; (“A court is without power to render a judgment against a party as to whom there is no jurisdiction”); Riverside Capital Advisors, Inc., v First Secured Capital Corp., 28 AD3d 457, 814 NYS2d 646 [2d Dept 2006]; (“A court has no power to grant relief against an entity not named as a party and not properly summoned before the court”); see also Hirsch v Syrota’s Auto Wreckers, Inc, 211 AD2d 62, 621 NYS2d 892 [2d Dept 1995]; Berlin v Sordillo, 179 AD2d 717, 578 NYS2d 617 [2d Dept 1992]). This court is disinclined to issue any such judgment particularly, where as here, the property rights and interests of persons not joined as party defendants are protected, not only by traditional notions of due process, but also by our “race-notice” recording acts and such rights and interests are at risk of being adversely affected by said judgment (see RPL Article 9: §290 et. seq.). Under [*3]these circumstances, the court will not confer upon the plaintiff the relief demanded in its complaint as it has not demonstrated that such relief will not adversely affect the statutory rights and interests afforded to bona fide purchasers or encumbrancers that accrued subsequent to the plaintiff’s mistaken issuance of the subject mortgage satisfaction piece and prior to the filing of the notice pendency (see RPL §291 et. seq.).
In view of the foregoing, this motion is denied. The proposed order submitted by the plaintiff has been marked “Not Signed”.
DATED: _______________________________________________
Thomas F. Whelan, J.S.C.
Aloha Tracee,
I have been working hard to get this all exposed as well. If you don’t mind you could email me at kcollma@ hotmail.com. I have done some hard research as well on the whole MERS, assignments etc.
I will be filing a motion to set aside default judgment this week and any help would be greatly appreciated.
Thanks
Kevin
Keep me posted and up to date!
First of all…a BIG thank you to Neil for all of the wonderful info on this site…it has been such a help to me and so many others.
I am so happy to report because of this info that we are winning our battle with Deutsche and we were actually supposed to have a hearing this afternoon for their motion to lift our automatic stay which was reviewed by their “Bankruptcy Specialist”, and their only evidence to support their motion was copies of our note and mortgage from our recorder’s office as well as this bogus assignment. But after our attorney blew them out of the water with the forged signatures we discovered on the mortgage assignment they filed a “continuance” at the last minute and we will be receiving a proposal to “settle”. They are in the corner bleeding and I can’t wait to go in for the kill!!
As we all know, Ameriquest went bye bye in 2007, yet they “assigned” our securitized mortgage via Citi as “limited” POA in March 2009 to Deutsche when the loan was 5+ months “delinquent”. Linda Green and Tywanna Thomas signed as “Vice President” and “Assistant VP” for Ameriquest based out of California and the company DOCX based in Alpharetta Georgia prepared and notarized the assignment with Brittany Snow being the notary, not to mention “backdating” the assignment to cover their own a$%&!! It was rather easy for me to find a TON of assignments with Green, Thomas, and Snow having discrepancies in the signatures as well as being “VP” for multiple companies in a matter of months. This is pretty much self explanatory of the FRAUD they are committing on the Courts and people and taking homes that they have no rights to…and I cannot wait to see what jackasses these “Specialists” will look like standing in front of a Federal Judge!!!
ANY DOCUMENT PREPARED BY DOCX IN ALPHARETTA GEORGIA IS A FRAUD!!!!
I wanted to keep this short…does not touch on so many other parts to the equation…feel free to contact me for further info!!!!
I will keep you posted!!!
Thanks again!!!
This is still happening today, most foreclosure attorney firms will do whatever it takes to make those $2,500.00 per filing. They know that 90% of you will not even call them to askd them a question. and their phone systems are designed not to answer any of your calls.
I would hope some one could file a class action against all these loans with MERS. Here in VA, we have a foreclosure firm that, tried to evict some one from their home, using three different identities. Let me explain, Wells Fargo and their foreclosure vultures, sued the property owner, who had rescinded the loan and who had an attorney representing him. They ignored all the QWR’s, all the calls and foreclosed without proper notice. They used MERS in all its versions. They sued in three different occasions using three different Wells Fargo Corporate identities. In VA after you sue twice for the same causes of action and then un suit the case, you lose. These crooks, tried to steal this families home faking documents, identities, corporate charters, etc.
The homeowner will pursue an action to quiet title in the next week or so.
Bye WELLS FARGO, ETal.