NEVADA BKR JUDGE KNOCKS MERS ON STANDING ON LIFT STAY MOTION

THANK YOU TO Deontos: This is regarding “Standing” to obtain “Relief from Stay”. Riegle concluded MERS lacks “standing”. Stay tuned on this ……. It might
really wreak havoc on the MERS menace in Nevada.

EXCERPTED CASE FILE:

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
* * * * * *
In re ) Case No. BK-S-07-16226-LBR
) Chapter 7
JOSHUA & STEPHANIE MITCHELL, )
)
Debtor(s). )
) DATE: August 19, 2008
) TIME: 3:30 p.m.
________________________________________ )

MEMORANDUM OPINION
Mortgage Electronic Recording Systems, Inc. (“MERS”) through various counsel has filed a number of motions to lift stay. Some of the motions were filed in the name of MERS, 1 while others have been filed in the name of MERS as the nominee for another entity. An order for joint briefing was entered because the substantially same issues were presented in the motions, and a joint hearing was held. Mitchell (#07-16226) has been designated as the lead case. The trustee or counsel for the debtor in these cases has opposed the lift-stay motions on the grounds of standing and that MERS is not the real party in interest.

The initial response filed by MERS contained no evidentiary support. Rather it described the role of MERS and its members by relying on law review articles and the recitation of facts in other cases in other districts involving MERS. Prior to the initial argument, MERS attempted to withdraw the motions filed in all but four of the cases. MERS then filed a declaration at the court’s direction explaining why the motions were withdrawn. The declaration of William Hultman was filed in Dart. The declaration, in addition to explaining MERS’ rationale for 3 withdrawing the motions, also attached as exhibits copies of the MERS Membership Application, the MERSCorp. Inc. Rules of Membership, the MERS Procedural Manual, and the MERS Terms and Conditions of Membership. The court also requested appropriate evidentiary 4 support for the allegations concerning the relationship between MERS and the entities for whom the motions were brought. A supplemental declaration was filed in Michell, the lead case.5 As noted, MERS has attempted to withdraw all but four of its original motions, leaving only Dart (#08-11007), Hawkins (#07-13593), Ramirez-Furiati (#08-10427), and Zeigler (#08- 10718). MERS admits that it failed to follow its own procedures in the motions it wants to withdraw. The debtor, the chapter 13 trustee, and MERS subsequently stipulated to a lift of stay 6 in Ramirez-Furiati which the court approved with the acknowledgment that the order contained no finding about MERS’ standing. This court will discuss the issues raised in the motions that MERS attempts to withdraw, and by this order issues its ruling in Dart and Hawkins, which are 8 the two cases that are now pending before it. 9

The court has advised the parties that it would consider any information contained on the MERS website at http://www.mersinc.org/ unless an objection was made. No objection has been filed by either party. The court thus takes judicial notice of the contents of the MERS website. …………………………..

CONCLUSION
The lift-stay motions in Dart and Hawkins are denied. MERS may not enforce the
notes as the alleged beneficiary. While MERS may have standing to prosecute the motion in the name of its Member as a nominee, there is no evidence that the named nominee is entitled to enforce the note or that MERS is the agent of the note’s holder. Indeed, the evidence is to the contrary, the note has been sold, and the named nominee no longer has any interest in the note.

IT IS SO ORDERED.
Motion

full file:
http://www.nvb.uscourts.gov/Opinions/Riegle/07-16226%20Opinion.pdf

16 Responses

  1. Just found out about this type of ponzi scheme going on in our system. I dont think Madolf or what ever his name is could have scripted this scheme better. Recently I’ve been trying to Refi. my Mort. My Mort. Co. is very unresponsive and is requiring an appraisal on my home., which I’m sure all know will never pan out. I’ve always done the right thing as far as my loan obligation goes, but can see where this is going! I’ve been advised to withold payments. Just to get recognition. I would appriciate any comments.

  2. Unfortunately, BK court is the only place any semblance of relief is being found (and then only temporarily). Even in Nevada and all the contiguous States to California (I’m in California) that are generally considered non-judicial, are making no headway in either Federal District Court or State Courts regarding standing to proceed to foreclose under the non-judicial foreclosure trustee sale scheme.

    Judges are still routinely ignoring standing issues with respect to having the right to foreclose…proof of having the note, being an actual party to the transaction, holder in due course etc.. This is the fight we need to find a way to start winning some battles and haven’t been so far.

    Having just read some of the MERS class action litigation transcripts going on now in Nevada in Dalto et al v. Citimortgage et al…the attitude and rulings the judges are making are still very frustrating!

    Charles Cox

  3. YES YES YES YES!!!!!! finally a Federal Judge here in Nevada… stickin to the big guys for ripping off us homeowners with their PONZI scheme! As long as WE HOMEOWNERS continue to fight by using the legal system we will set PRECEDENCE and NIP this 20 year scandel in the bud! View my pending lawsuit @ Pacer.gov / Nevada Federal Court Duffy vs. MortgageIT, Indymac Bank DBA OneWestBank, and Trustee Corps!
    Thank You Livinglies!!!
    Heidi Duffy
    Henderson, Nevada

  4. Paul,

    What state are you in? I’m in Mississippi.

  5. zurenarrh: Which legal firm did you use and which attorney?

  6. Dear Sir:

    I am changing my practice to represent consumers in credit card cases. I would greatly appreciate any sites you could provide regarding a credit card company lacking standing to bring lawsuit where accounts have been securitized and sold to third parties.

  7. need some direction on RESPA lender bought and sold loan to another bank first bank shorted second bank on the reserve account NO ONE will tell me where my money is I have sent letters to bank no answer yet. I have made all my payment documents auto pay every month from checking . went to streamline refi to find out the reported me late on my credit for the difference the two banks should have resolved. Did I mention they reported me late 5 months in a row and now my credit is in the shit. I cant find an attorney that handles RESPA in ATlanta they all work for the whores we all know as banks.
    any ideas I could sure use some direction

  8. BofA absorbing CW is no doubt bogus in defrauding Lawful Consideration and fradulent

    Please cite Fed or other laws/cases to rely on. I’ve got one to deal with.

    Thanks.

  9. A simple strategy is to claim the Assignments are clear Fraud, based on their lack of any Power of Attorney, any MERS AVP or other agent is an employee of some other company.

    For example, Carrie A Hoover, who is known to sign as a MERS AVP, is a Countrywide employee.

    Challenge any BOA loan, you cannot simply absorb a company in an all stock transaction and claim to have Lawful Consideration in exchange for the Endorsement of a Promissory Note. That’s bogus, insulting to the Court, but you must call out the Fraud and invoke the Judge’s rage. If you wait for the Judge to call out the Fraud, you will be waiting for a White Knight, like Judge Shack…only one Angel in the evil world of Justice.

  10. zurenarrh,
    I’m telling you, as simple as it soungs, check all your dates, look at all the minor details, they may lead somewhere big.

    is your case posted anywhere?

    It’s almost like there must be some really big secret about MERS, I mean the soap opera comes way over the line of unbelievable.

  11. bt,
    While I believe my TRO complaint was well-written and should have been granted on its merits, I don’t believe that its merits were what got us the TRO. I think it’s more like what Neil has said here on the site: “A good lawyer knows the law and a great lawyer knows the judge.”

    That said, I’ll share the gist of the complaint with you…

    1) We named Bank of America, FSB, Bank of America Home Loans Servicing, and Recontrust as Defendants. We did not include MERS as Defendants even though they fraudulently assigned our Deed of Trust “together with the Note” to BAC Home Loans.

    2) We made sure to point out that all the Defendants were/are foreign corporations not licensed to do business in our state with no officers on record to receive service of process.

    3) We then merely recounted our story, starting with the purchase of our house and subsequent refinance which brought us into contact with the Defendants. We described the multiple instances of their unscrupulous behavior.

    4) We then explained how we came to be “in default.”

    5) We then described our attempts at short sale and modification (which we attempted before we–as Neil says– “got it”) and the bad faith handling of those matters by the Defendants.

    6) Then we pointed out how none of the Defendants had any interest in the Deed of Trust or the Note because we knew that the Note had been sold to Fannie Mae (confirmed via the Fannie Mae online “Loan Lookup Tool”).

    7) We pointed out how no public assignments had been recorded of any sales of the Note/Deed of Trust. We pointed out that, according to the language of the Deed, the Note must be sold “together with the Deed of Trust,” which was not done. The complaint summarizes this state of affairs thusly:
    “However, on information and belief, there has been a severance of ownership and possession of the Note and Deed of Trust, but the chain of transfer, sale or assignment of each is not made available in the public domain and is currently unknown to Plaintiff.”

    8) We then alleged that there was no “meeting of the minds” due to the sudden change of terms at closing. We alleged that the Defendants have “unclean hands.” As a result, we pointed out that the Note/Deed are unenforceable. We pointed out that none of the Defendants were/are the holder in due course and therefore have no right to enforce the Note/Deed.

    9) We said the following:

    “Plaintiffs demand an accounting of all credits and debits to the account and documentation to support each, including money received by Defendants from any and all sources.”

    10) We then asked for the TRO.

    Hope that helps. The Defendants sent a “Notice of Removal” to federal court. We just filed a motion to remand to state court. We’re now awaiting the decision on that motion.

  12. bt

    I say never underestimate your Adversaries brilliance or STUPIDITY.
    Me? I think MERS will soldier ON, where they can, while they can, because they CAN. When 80%+ people are not fighting for at least their
    “own day in court”, then MERS just gets to STEAMROLL right to the goal. Until an AG stops them or a class action stymies them; “you’re on your own”! OK I’ll stop {{{RANTING}}}

  13. Could you expand more about what these two Supreme Court rulings mean to a few things; 1) it seems obvious MERS will not try to foreclose in its name 2) what about foreclosure suits where MERS was used to transfer the securtized loans and the suit is being brought by a Trustee for the MBO 3) What about foreclosures where MERS is a Defendant with the borrower on the loan in foreclosure.

  14. zurenarrh- anyway to get a copy of your TRO, i just had mine dismissed and am trying again when the bank resets the sale date again. thanks

  15. The Nevada court said:
    “…there is no evidence that the named nominee is entitled to enforce the note or that MERS is the agent of the note’s holder…Indeed, the evidence is to the contrary, the note has been sold, and the named nominee no longer has any interest in the note.”

    We made this very point in my successful TRO in the following language:

    “Any assignment from the original beneficiary of the deed of trust is invalid as the original holder, Countrywide, no longer holds the Note. Further, the beneficiary was never a holder in due course and lacks any authority to assign any interest or to empower Recontrust to foreclose.”

  16. The house of card is starting to crumble. The day of reckoning is approching.

    marcus @ foreclosureProSe.com

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