TENNESSEE APPEAL NEEDS HELP

ONE ON ONE WITH NEIL GARFIELD ONE ON ONE WITH NEIL GARFIELD

COMBO ANALYSIS TITLE AND SECURITIZATION

GIVE A FELLOW WARRIOR SOME HELP HERE

START FILING AMICUS BRIEFS. If you want my signature on the amicus briefs, send the brief to me for editing.

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FROM

davidgmillsatty@gmail.com
I have just asked for permission to appeal to the TN. Supreme Court, in my case, Mills v. First Horizon and MERS.

I am not in default on my mortgage. I just firmly believe that my mortgage lien is invalid and unlawful and because I am a lawyer, I decided to do something about it. My lien is similar to millions of others around the country, and if the Court ultimately rules in my favor, it could set a major precedent around the country. Because I am not in default, the bank can’t argue that I am a worthless scumbag who doesn’t pay his debts.

That hasn’t stopped the bank from arguing that I am trying to get my house for free; no argument is too unconscionable for a bank, especially when the bank is running scared. Because I am not in default, my case has serious ramifications for all of those mortgages where people have not defaulted, and there are far many more of them than mortgages where the owners face foreclosures. The very last thing banks want is a court telling them that their mortgage notes are unsecured on their mortgages where people are still paying.

My primary claim is that the MERS lien on my property is invalid. MERS is the lienholder now of millions of mortgages, but MERS has never lent anybody a dime. MERS is a corporation with little or no assets and it acts as a strawman lienholder in the place of the real person who is the noteholder. Traditionally, the noteholder and lienholder have been the same entity. But securitzation changed all that. Now the lienholder, in most of the securitized loans from Wall Street, is MERS, an entity the property owner never owes. The note and the lien are now held by separate entities and have become physically separated from each other.

My primary argument is that this physical separation of the noteholder and lienholder creates a huge public deed recordation problem, which I argue makes the lien void as being against public policy. The separation of the note and deed of trust are deliberate and intentional. The public policy nightmare is that through the use of MERS as a strawman lienholder, the recordation process is transformed from a public, transparent and open system to a private, secretive, one.

With these securitized loans, one can no longer go to the deed records and learn the identity of who must be paid to get a release of the lien. All one can find out is that MERS has the lien, but one can’t find out who one owes; so the public deed recordation system now has become a sham. Everybody must now learn what they can from private sources — such as the MERS website and from the websites of entities like Fannie Mae or Freddie Mac who claim to hold many of the mortgages. But in reality, you can’t learn anything from these websites that is of much importance, and you certainly can’t clean up the title problem that is created when a lienholder is not the same person as the noteholder.

I also allege my lien is void or invalid for several other noteworthy reasons. Many of these liens, like mine, state that MERS is the beneficiary of the deed of trust. Several courts have already held that MERS is not a true beneficiary because MERS is never owed anything, and for a deed of trust to be valid it must have a true beneficiary. When a piece of property is sold at foreclosure the proceeds are supposed to go to the noteholder, who is normally the beneficiary. But when the beneficiary is MERS, the proceeds of a foreclosure sale go to an entity that is not owed anything — they do not go to the noteholder who is owed. MERS is really a second trustee or a corporate fiduciary. So one never knows whether MERS actually sends the proceeds of any foreclosure sale to the noteholder. This creates another huge title problem for foreclosed property. But it also creates a problem for the foreclosed owner who has no way of knowing whether the proceeds of the sale of his
property actually went to the person who was owed.

I also allege that my note is lost and the lien fails for lack of an enforceable note. A copy of a note is ordinarily not anymore enforceable than a copy of a check is capable of being cashed.

I also allege that the purported noteholder is unknown, and my servicer, as the agent of the noteholder, has no authority to demand payments of me without disclosing the identity of the noteholder, who is its principal. I have asked my servicer for proof of authority to act on behalf of the noteholder, its principal. Until the servicer provides this proof, I have asked for a cease and desist order against the servicer sending me any more payment demands.

And I have asked for many more things – including the return of my payments on my second lien note, which after I paid it off, never had the original note returned to me. Apparently, the bank lost or destroyed my second mortgage note, and thus could not deliver it to me when I paid it off. Without the original note, the bank has no proof that I owed it anything, so I am asking for my money back.

The TN Court of appeals held my case “was not ripe for adjudication” because I am not in default, and because no one is trying to collect against me on my paid off second mortgage lien note. By ruling that my case “was not ripe for adjudication” they avoided all of the critical issues of my case. By every existing legal standard, my case was ripe for adjudication.

My application to the Supreme Court of TN was filed on Friday September, 11, 2011. The Supreme Court of TN does not have to hear my case; it is a discretionary appeal.

I sincerely hope the Supreme Court of TN will take the case because the Court of Appeals reversed/ignored existing law in order to avoid having to address the real issues of my case, and because the opinion is just simply awful and is now the law in TN. Every lawyer I know who reads the Court of Appeals opinion just howls. It is so obvious that the Court of Appeals did everything possible to avoid having to address the real issues of my case; and in so doing, made some really bad law, reversing well established good law.

For those who might be interested, a copy of my application to the TN Sup Ct. can be found here:

http://www.scribd.com/doc/47056911/MillsV-FirstHorizonSupremeCourtBriefAsFiledWithAppendix

See the TN Court of Appeals decision here:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/David%20G%20Mills%20v%20First%20Horizons%20Home%20Loan%20Corp%20opn.pdf

18 Responses

  1. I sent an email to the address listed with this post and got a reply, stating ‘he’ had no idea to what post supposedly of his I was referring!
    At any rate, while I was looking into certain issues
    related to the post, I came accross a motion to dismiss filed by Mers in District Court, Eastern Div, CA, which stated:
    “Commercial Code Section 3301 is part of a diviison of the commercial code which concerns
    NEGOTIABLE INSTRUMENTS….The code goes on to define Negotiable Instruments. The definition includes instruments such as checks and money orders. See Cal.Comm.Code Section 3104. Notably, Deeds of Trusts or other instruments secured by real property are NOT (emphasis added) included in this definition (this is as non-sensical sentence as has ever been written, by the way). As such section 3301 has no bearing on the
    foreclosure on the property at issue in this case.”

    This is how they operate. There is no such thing as an instrument ‘secured by real property’, incllding a deed of trust. A deed of trust secures an interest in real property, but the instrument itself
    is not “secured”. There is intent in these misstatements and one must be ever-vigilant.

    But getting to the point, are we to take it that Mers is alleging that the UCC, or least California’s adaptation, does not apply to Notes secured by a deed of trust? That is certainly my reading of it. So, next time Mers and or your pretend lender rely on the UCC, you might quote them on this. I am posting this motion at scribd.

  2. To ALL:

    Anonymous –who posted
    “FYI –Friday, September 11, “2011″ has yet to come”

    THIS IS NOT ME —- I AM ALL CAPS — ANONYMOUS — I am NOT that poster.

    Some concern — Neil???

  3. @JVE always like your post’s…but what I see here is a person, informed property owner attempting to clear up a mess… god bless that they are not in foreclosure and they are willing to take the time and effort to confront an issue that many property owners in America do not fully understand, the impact all of this will have on their sovereign rights to property. Which should scare the @#$& out of everybody!

  4. It would seem to me that the first step is to separate out the issue of the second mortgage, and file that suit directly against the (second) Bank for refund of paid monies. It might be possible to do that quickly by attaching a Motion for Summary Judgment directly to the Pleadings; that forces adverse to reply to summary judgment in 30 days, which it does not look like they can do. Did the 2nd Bank file a release of Lien on the land title records?

    Once you establish case law that failure to produce the Note will lead to extinguishment of the lien and debt, you have created a stepping-tone to the next step, which is failure of the Servicer to be able to identify the investor (and produce the Note) on the 1st Mortgage. that gets you around the “not ripe for adjudication” issue with MERS, or at least gets you a shot at it.

  5. Help:

    Carol argued my brief to the Court of Appeals. You will note that she is listed as an attorney for me on the Court of Appeals opinion. We talk all the time.

  6. Call Peter Ensign at 423 510 0410. He’s doing the right thing.

  7. Every one, even attorneys miss the point. What he says is correct, but the important part is that the bank recorded the documents, which is a felony.

  8. The court of appeals clearly focused its analysis on the underlying action as a weak foundation for the relief that was requested. The suit, a quiet title action, was essentially in the nature of a declaratory action. However, the opinion points out that because this action was missing essential elements (they did not use these exact words) of a controversy – that is, allegations that would make consideration of the dispute ripe for consideration – the matter was not ripe. They are telling you that your foundational allegations were just not there. That gave the other side grounds to seek dismissal. Rather than amend your complaint to allege sufficient facts to state a claim you pursued an appeal. The High Court will not likely take this case.

    The court’s analysis and that which the other side seized upon is the fact that without an actual controversy the court’s subject matter jurisdiction is not invoked or perfected and remains at rest. All they could do is to note the defect and dismiss. Of course all these courts are reluctant to actually say that. However, they did leave the door open and gave you hints about what might be used to state a claim.

    It may have been better to frame out the legal issues in two parts. First, a DEC action that focuses on doubts about the rights of the parties on both sides of the dispute, alleging that there is no other remedy at law to resolve the issue. That issue would need to be resolved first, ideally on summary judgment after an adequate evidentiary foundation has been established. Prevailing on that first point opens the door to the second part which is the quiet title action. Most observers may read this and believe that it’s all the same and the two-part strategy is more work than necessary. However, going for the whole thing at once leads the result obtained here. The current climate in the judiciary just doesn’t have the tolerance for this “home run” kind of outcome.

    A declaratory judgment action would smoke out the gaps in the missing chain of title and other related issues and strategically shifts the burden to the defendant. When that part breaks down for them, and it will where the mortgage loan has been securitized, it will begin to shape the path for the court to decide the rights of the parties. Once that happens, and the court finds in favor of the plaintiff, it opens the door to the the quiet title portion of the action which will be a perfunctory proceeding at that point.

    Energies spent pursuing relief from the supreme court might be better spent crafting a new complaint, tight and focused, with a new strategy. There is little risk of any claim preclusion or res judicata here because the new dec action would be a different cause of action and because the prior ruling was grounded on lack of ripeness. They left the door open for you. Reread the opinion with an eye for the gaps they point out.

  9. I believe Tennessee does not require a loan be recored with the county like other states, where in the states that do require the recording; MERS failed to record the sale, transfer, or assignment of the loan documents and avoiding recording fees and duly required recording requirements.

  10. you should contact Carol on the Tennessee Livinglies Attorney list. She gets it and is pounding away with Quiet Title suits in tennessee. She may be able to help you

  11. I believe Tennessee does not require the loan documents to be recorded on transfer, sale, or assignment, like other states require, where entities are required to record transfers of the Mortgage or Note…. and MERS avoided recording fees by failing to do make these secutization process transfer recordings with the county, but that appears to not be an issue for MERS in Tennessee.

  12. Tennessee is tough. I have fought two banks with TRO’s and it is a nonjudicail state and sadly 99% of the folks do not fight, so there is not case law to support any borrowers for anything. Also, the Judges don’t deal with securtization, like florida, utah and other states…so it is tough and they do not understand or believe for a minute that a bank/lender/pretend lender would stand in court or make filings that are misrepresented, misleading, or other wise. I wish you the best of luck. I would advise you to contact Carol on the Livinglies Garfiled attorney list for Tennessee… She gets it and is really pounding away at some Quiet Title stuff.

    cmolloy3@hughes.net

  13. This was written by Mr. Gregory Bryl, in his blog, Mr. Bryl is an attorney in Virginia who has been working on different strategies and faces a very lender friendly court system in his local area. I have seen this guy face judges telling him that before any one rescinds they have to pony up with the tender. As you can imagine Virginia sold out to the banksters a long time ago.

    I hope, lawyers like Mr. Bryl and others ln Virginia are successful in prosecuting the banks. The White House, Congress and the regulating agencies do not care about you or your family. They have been bought by the banker elite long ago as well.

    “Homeowners’ response to banks’ dual track mod/foreclosure system
    Homeowners are rightfully disgusted with the banksters’ loan mod / foreclosure dual track system, whereby a bank will pretend to negotiate a modification, put the homeowner on a “trial period” of 3 months, then extend the trial period to about a year, and then suddenly announce that the homeowner does not qualify for a permanent modification. The bank will then re-start the process of negotiating for a mod, but at the same time will put the homeowner on the foreclosure track, and then foreclose behind the homeowner’s back under this loan-mod/foreclosure “dual track” system.

    It’s time for the homeowners to fight back. Clearly, the banks have much more incentive to squeeze the borrowers out of another year of payments and then take the house by foreclosure on top of that. The government’s $1000.00 “incentive” per permanent mod is laughable compared to all the incentives to foreclose.

    So the way for the homeowners to fight back is to put the banks on a dual track system. It goes like this. Homeowner will pretend to negotiate a mod just like the bank is pretending to do so. At the same time, however, homeowner will file a Quiet Title action against the parties of record.

    You see, most “bubble” loans, especially MERS loans, contain a latent defect. The defect is that the loan has been transferred away from the original pretender-lender, but the new party’s interest is not recorded. At least not until default, when the new party will start preparing to foreclose.

    As long as that interest remains unrecorded (and that is that party’s choice and not your fault), the new party is not entitled to any notice as to any changes in the ownership of the property or adding/removing encumbrances, nullification of a prior deed of trust, etc.

    So, if the homeowner successfully challenges the encumbrance (the deed of trust or mortgage) based on TILA/RESPA violations, table-funding, unrelatedness to the reality of the transaction (failure to name actual parties, etc.), and other defects, the pretender-lender will not even have a chance to defend against such challenge for the simple reason that its putative “interest” is unrecorded and they are not entitled to any notice, while the party whose interest is recorded does not care anymore, as they have sold/transferred the loan. Moreover, the original pretender-lender is likely long one, in bankruptcy, etc.

    Those of you especially with MERS loans – its time to stop this loan mod nonsense at the expense of taxpayer bailouts and play hard ball. Put your bank, which doesn’t usually have a scintilla of interest in your home, on a dual track system of loan-mod/quiet-title! ”

    http://www.bryllaw.blogsspot.com

  14. FYI, Friday, September 11, “2011” has yet to come.

  15. The problem is your 1st mortgage is probably not anywhere that you think it is.

    According to TILA (2009 Amendment) and Federal Reserve Opinion (now rule) — the creditor must be identified and neither a servicer, trustee, trust, or MERS – is the creditor (none reflect the loan ownership on balance sheet).

    Upon request, the servicer must provide the name, address and contact information for the creditor. The section for TILA is: § 1641(g)(1)

    You may want to file a complaint for violation of the law in federal court. First, do a demand to servicer. They may try to name a trust/trustee — but Fed Opinion says beneficial pass-through security investors are not the creditor. Since, your payments are current — they would be passed on to beneficial security investors – but, again, they are not the creditor. However, tranche certificate holders could be considered the “creditor” — this would be the security underwriters to the trust — or, if security underwriters sold to another financial institution. But, tranches are limited in number (likely less than 20) — and many have been paid off by swaps. So there would only be a limited number of tranches left.. The entity with the largest position on its balance sheet must identify itself to you under the TILA.

    The below case is the only case I currently know to address. Do not know final outcome.

    CONSUMER SOLUTIONS REO, LLC, Plaintiff, v. RUTHIE B. HILLERY, et al., Defendants.
    No. C-08-4357 EMC

    UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

    2010 U.S. Dist. LEXIS 37857

    March 24, 2010, Decided
    March 24, 2010, Filed

  16. David G Mills attorney,

    I’m in a bit of Shock and Awe…..when did your “initial” case begin regarding this matter and in what court? Sorry I don’t have a Pacer reference at this time.

    And, how has it now gone beyond the TN Appeals Court process and escalated, by your asking, to the TN SUPREME Court?

    I had to step back and re-read…..you are a lawyer, your Not in default, and “the bank can’t argue that I’m a worthless scumbag who doesn’t pay his debts”, but wait a minute…..They DiD argue that and went further to say you were “trying to get a house for free”!

    Consider me a “doubting thomas” but your argument here bears little fruit with the “knowledge” you already have regarding the NOTE, MERS etc. and you are a lawyer looking for information from the masses…..before I submit my non-attorney knowledge and research, which you should already know!

    If the TN Appeals Court reversed existing State Law I would love to see the Appeals Court decision on said reversal and any challenge made by the petitioner against said decision.

    Also since you note that you’re Not in default, why is a lawsuit in order here on your part rather than seeking a MODIFICATION of the LOAN like many of the “free home scumbags” have been trying to accomplish for years?

    Sorry David, I don’t buy the spiel.

    Gary

  17. Oops, that case was in Nevada.

  18. There was just a ruling today by the Utah Supreme court invalidating Default claims and Mers.

    http://www.americanbanker.com/issues/176_14/new-pt-of-foreclosure-contention-1031585-1.html

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