MERS-Deutsch Slammed on Quiet Title

9.09.10 NY MERS NO AUTHORIY DISMISSED

MERS tried to Quiet Title. In so doing they paved the way for millions of homeowners to sue MERS to quiet title. The net result is that the encumbrance is invalid. That means the debt, the obligation, MIGHT exist, but it is NOT secured by the home. I’d say I told you so, but that would be immature. 🙂

All of that is important but Judge Jeffrey Arlen Spinner went a lot further and made his mark on the issue of bogus affidavits that say nothing but which are used by foreclosure mill attorneys who spout off about what the affidavit says or what it proves. Judge Spinner flatly says the affidavit would be insufficient even if MERS had an interest, which it does not. He clearly states the law which is valid not only in New York, but EVERY state and federal jurisidiction, but which has been ignored by a majority of judges until now:

To establish a claim of lien by a lost mortgage there must be certain evidence (e.s.) demonstrating that the mortgage was properly executed with all the formalities required by law and proof of the contents (e.s.) of such instrument. … Here Burnett’s affidavit simply states that the original mortgage is not in Deutsch Bank’s files, and that he is advised (e.s.) that the title company is out of business. Burnett gives no specifics as to what efforts were made to locate the lost mortgage…. More importantly, there is no affidavit from MLN by an individual with personal knowledge of the facts that the complete file concerning this mortgage was transferred to Deutsch Bank and that the copy of the mortgage submitted to the court is an authentic copy of Torr’s Mortgage.” (e.s.)

EDITOR’S NOTE: The importance of this decision and its citations cannot be over-stated. Now we are getting down to the nub of it. It isn’t enough for the  foreclosure lawyer to make empty allegations contained nowhere in pleadings, affidavit or proof. The foreclosure lawyer is seeking affirmative relief — enforcement of the note and sale of the property. If he can’t plead the case in good faith then he doesn’t belong in court. And if he does plead the case he must prove it within the boundaries of ordinary rules of evidence. A competent witness must exist who is wiling to testify under oath and who actually appears to do so. They musts possess PERSONAL knowledge (not what someone told them) of the facts about which they are going to testify. Business records exceptions are very restrictive as they prevent the other side from cross examining a live witness (a basic constitutional right of due process).

  • “Trust me” is not a substitute for real evidence.
  • If they want to prove the obligation, they need evidence.
  • If they want to prove a default, they need evidence,
  • if they want to prove the note is evidence of the obligation, they must prove that assertion with evidence that the note is the whole deal (which is NEVER the case in a securitized loan).
  • If they want to prove a lost note they need evidence that the note was in existence, when it was in existence, how it came into existence, and what happened to it — not just say we had it, but now we don’t.
  • And watch out for those “original notes.” Many of them are fabricated using simple software and a color printer. If there are no impressions on the back of the page, even the note they present is probably NOT the original and is probably a fabrication printed off a laser or dot matrix printer. Close examination will show even a novice the truth of this statement.

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29 Responses

  1. What i don’t understood is actually how you are not really much more well-liked than you may be right now. You’re very intelligent. You realize thus significantly relating to this subject, made me personally consider it from so many varied angles. Its like men and women aren’t fascinated unless it is one thing to accomplish with Lady gaga! Your own stuffs excellent. Always maintain it up!

  2. JEAN: Worse things have been said about me especially in bank boardrooms. The reason for the charge is (1) our costs are much higher than you are thinking (2) the report isn’t the same as the title report you get for “free” by the way they usually charge) and (3) even the report without commentary, with copies of all relevant documents is presented in analytical style such that a good property lawyer or title examiner would see what we would put in the analysis which costs even more. If I truly suck then it is because I’m disappointed in how long it took to get my message out.

  3. You are actually going to charge people near 200 bucks for a title report?
    I say shame on YOU. These people can pull these reports for FREE and get anyone with half a brain to explain it to them.
    You suck.

  4. Well now… Let’s not leave the candy store open for all the paranoiac lenders who anticipated that damage control might require them to hoard the original note, so they could sell as many perjured ones they wanted to, and, still be able to scam the repos, to, roll the scam, all over; as many repos as they could create… Put them under penalty of perjury, after stress tests, and, “Eyes for Lies,” gets done with them… and, force them to give up all they have embezzled by the money actually created by Corporate Slave signatures… Edgrrr…

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  6. Damien,

    I’m not sure how I missed it on your site, but I did. Following the link you provided here I found both the order and the index number.

    I do prefer, whenever possible, to read the orders on the New York Official Reports website (http://www.courts.state.ny.us/reporter/). When I looked on the site the other day I couldn’t find this recent Spinner order. Perhaps because this is not a final disposition it is unavailable.

  7. Speaking of MERS and Quiet Title……Kreiger’s book is almost done! It should be out VERY soon. Keep an eye out for it at http://www.cloudedtitles.com

    It will be required reading! 😉

    ~Seeking Remedy

  8. Stupendous,

    Note: My SCRIBD documents mysteriously keep going ‘PRIVATE’ and this happens quite frequent to many of mine…If you cannot download it send me an email info @ stop foreclosure fraud dot com.

    http://stopforeclosurefraud.com/2010/09/09/ny-judge-spinner-denies-deutsche-mers-for-not-recording-mortgage-make-up-affidavit-and-assignment/

  9. Stupendous,

    I’ll see if I can look it up on Pacer, otherwise just follow the links Neil has given above.

  10. Anyone have the slip number for this so I can look up the actual decision?

  11. Neil Garfield will become a Saint someday (St Neil) .
    Keep up the good work. If anything we fight for our dignity. So let’s Press on and Fight these dirty bastards,

  12. It’s quite possibly the most blatant schadenfreude moment of modern times, if not simply the most ludicrous, that it was somehow OK for the initial collapse of the housing market to be attributed to sub-prime nare-do-wells. Those low-lifers who obviously had it coming to them due to their lack of proper breeding, insight, or low I.Q.

    Shallow gene pool depths could be the answer, no doubt. They probably spent their evenings out at bars with stripper poles drinking away their meager incomes or brewing meth in their unaffordable
    housing unit basements. Serves the biker’s right. Let them be foreclosed upon. Good riddance! FOOLS!

    Then there appeared the newly unemployed. But wait! This can’t be happening to me! I pay my bills on time! I don’t drink or do drugs! I’m a good person! I send my kids to daycare. I go to PTA meetings. How am I supposed to buy Christmas presents while my
    hours have been cut in half, and pay the mortgage at the same time? WWJD? WTF?

    Then, the tenured, who basically turned their heads at the initial turmoil, started to hear about tumults within their own communities. Some historians were reminded of the period in which prominent Jews were hauled out of their housing in Poland and a myriad
    of other nations before anyone really knew what was going on, simply to disappear from their neighborhood for good. Or should I say for bad?

    The new modern American Era had perfectly functional families being displaced from their housing due to absolutely no fault of their own. And yet, just like in pre-war Europe, few listened to the warnings. Few spoke out.

    What we are now seeing and feeling all around us, is very much akin to pre-war Europe. Very slowly, common, average folk are starting to realize that this isn’t just about meth heads and those folks who bought more than they could afford, thanks to government programs that were designed to build home ownership.

    This mayhem isn’t simply about homeowners gone wild looting their home’s ATM machines in search of readily available wealth.

    More and more, the egregious nature of the banks crimes appears to fly in the face of anything prior. There is no precedence here. This crime is not attributable to common folk, just living their lives day to day. There’s nothing judicially correct here. Nothing morally honorable. NOTHING HUMANE. WHAT WE ARE WITNESSING HERE IS AN
    ABOMINATION!

    Only when people start to clamor about their relatives, friends, loved ones, or THEMSELVES, being cast out onto the curb like so much garbage will the tide begin to turn. Until that time, we are no better than the Europeans who watched curiously as neighbors were whisked off, never to be seen again.

    Good luck with that. Hint: it doesn’t end well.

  13. What case is the quote from?

  14. khenry:

    Go re-read the article about 62 million mortgages are foreclosure-proof:

    http://livinglies.wordpress.com/2010/08/20/62-million-homes-are-legally-foreclosure-proof/

    Then read the great cases about MERS (a good starting point is the post here about the treatise written by two bankruptcy judges):

    http://livinglies.wordpress.com/2010/09/08/excellent-review-of-mers-cases-by-bankruptcy-judges/

    Next, go look up all the filings on your securitized loan at the SEC website. You have the full name of the trust, so just do a search for “CWALT, Inc. ALT 2005-j12” and you should find the 8k, 10k, 424(b)(3), 424(b)(5), and whatever else you need. The Pooling Agreement (sometimes called the “Pooling and Servicing Agreement”) is often an “exhibit” to another filing so check everything out. Many times the Pooling Agreement is already in PDF format, and since that document is the key to a lot of information, that helps make it easy to download and print selected pages.

  15. Wow…..I guess I’ve been in Nevada for too long, because the attorneys for the “lenders” and the judges seem to think that “trust me” is not only evidence, it’s grounds for dismissal (of OUR case) with prejudice!

    I’m always glad to get more good decisions. But the quality of the copy of the order seems bad….or is it just me? It looks like a “negative” or something. Can it be re-scanned, please, or is it available in “high definition” on another link somewhere?

  16. Need some more guru advice here. I’m fighting a BONY foreclosure without MERS being involved, (I think). The NED reads:

    Original Benificiary: MERS, Inc. as nominee for Mila, Inc (bankrupt and out of business)

    Current Holder of Evidence of Debt: BONY Mellon FKA BONY as trustee for Certificateholders CWALT, Inc. ALT 2005-j12.

    If MERS was involved in this and the previous mortgage that I re-financed, does that invalidate either or both of those loans since MERS could not transfer anything to anybody?

  17. To Anonymous Atlanta

    http://mises.org/books/vampireeconomy.pdf

  18. This decision may vitiate future arguments by MERS similar to its “the-dog-ate-my-mortgage-documents” defense in the Torr case. (Neil is an attorney and therefore not immature. I am held to no such standard, being a mere mortal human being.) I wear my badge of foreclosure with more honor each day.

    The pretender lender to the MERS-assigned mortgage in my situation has offered to give me another chance at a loan modification. Only 2% over 30 years. Gee, I’m either really lucky or said something in response to interrogatories (as to my allegations of fraud in court documents) that inspired this generous gesture by the better angels of their nature.

  19. I am Happy for this weeks developments!

    I read a commentary Yesterday from “The Vampire Economy” by a Mr. Mises, it was very informative and clearly shows the pattern of History repeating its self and if you take the time to read this you will be enlightened. 75 years ago the “Machine” was in full throttle and only time has passed. More of the same, however this time they may have to eat there own shit.

    I have 6-8 + Possible Claims on my Title, Starting with “MERS” as the lead dog.
    1-“MERS” Lead dog with Blinders
    2-Americas wholesale lender
    3-Countrywide Bank FSB Alexandria, Virginia for THE “HELOC”
    4-Countrywide as Original “SERVICER”
    5-Bank of New York-Mellon
    6-Recontrust N.A.
    7-BAC Home Loans Servicing. LP
    8-Fannie Mae Washington, DC I am not sure about (FM) but WTF we can through them in for good measure. This does not include any of the players that are hidden.
    I wonder what they were thinking as the Security Deed contains
    Part Indian Legend and too many possible claimants. So the only possible outcome starts to be a little bit clearer than the day before. Declaratory Judgement and Quit Title is on the menu.
    In the mean time I received my Property Tax Bill yesterday and it is up 15% over last year. So we have a new dynamic going on here. This is where people who are not involved with this (foreclosure) process are going to see that they too are now footing the bill in the form of HIGHER TAXES” So like it or not this is an outrage to every AMERICAN. I am going to challenge the new ASSESSMENT/APPRAISAL FROM THE COUNTY.

  20. very interested data from a mortgage veteran :

    http://mhanson.com/blog

  21. We need this kind of success in Virginia, MD and DC
    The judges here are really something else.

  22. http://livinglies.files.wordpress.com/2010/09/9-09-10-ny-mers-no-authoriy-dismissed.pdf

    Awesome , especially as it was KEL defending … Now we need the same for Wells Fargo and their internal system that copycats MERS.

  23. New York – again. So goes California, then New York, then goes the rest of the country (old legal saying). What happened to California??

  24. Again, thank you Neil and the folks that comment here. Now, how can we place Recontrust Company, N.A. (CW/BOA) in the same perview as MERs?

    I know the ownership, designation and pattern of RTC how signatory tranfers are claimed and more.

    Consentrate a bit on Recontrust, (bill collectors) also the similarity to “employees” etc.

    Gary

  25. These articles give me hope and the courage to fight. Thank you NG.

  26. VERY VERY AWESOME. Thank you for the simple explanation of what this means. It is giving a bit more hope for those of us still in process. 🙂

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