SEPARATING THE NOTE FROM THE OBLIGATION: TOO ESOTERIC FOR JUDGES

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

EDITOR’S COMMENT: The argument for separation of the note from the mortgage is finding a lot of resistance from the Bench, as Ron Ryan writes below. I agree with him up to a point. The fact remains that at the very start of the transaction, the receivable (cash trail) is separated from the documentation. Whether you call this separation of the mortgage (deed of trust) from the obligation or call it something else, it remains important to differentiate between the two transactions at the time of the “closing.”

  1. The actual transaction is between the source of funds and the homeowner. The source of funds is never disclosed at the closing, nor in any of the closing documents. Thus the loan is table funded by definition and it being a pattern of conduct that is indisputable, it is a predatory loan per se (Reg Z), which is something I would think any lawyer would want to point out, in order to start out on the right footing. Since the closing documents do not refer, directly or indirectly, to the actual cash transaction, nor to the treatment of receivables after closing it is clear that the documents at closing are not relevant to the actual transaction, nor are the parties to those documents. Thus the actual cash transaction and the money trail after closing is an entirely undocumented transaction.
  2. The documents upon which the pretenders are attempting to use in foreclosing, collecting or otherwise being involved in the money trail are a ruse — an illusion that both Judges and lawyers are having a hard time wrapping their minds around. It feels counter-intuitive and perhaps even a bit silly to say that the pile of documents produced at the illusory “closing” are all irrelevant or mostly irrelevant. While they could serve as the basis for introducing certain evidence in a lawsuit brought by the true creditor to reform the closing documents and establish themselves as the payee under the note and perhaps reconstitute a lien, the true creditor has no interest in bringing such an action and the lawsuit has never been brought to reform the documents or even ask the borrower for a signature correcting the breaks in the chain of title. 
  3. Thus the separation of “note and mortgage” is not really the issue so much as separation of the obligation from the rest of the documents including the note. Properly pleading and subsequent discovery would show exactly what I have described here, thus providing the solid basis for a challenge to standing and striking the pretender as not being a real party in interest nor authorized to act on behalf of the real party in interest. THAT is because even if the true creditor wanted to step forward, which they don’t, they have no documents to rely upon. The chain of documentation is both fictitious and fabricated, violating the REMIC statute and the terms of the contractual relationship amongst the securitizers and the investor lenders (i.e., the pooling and service agreement). The transfers were never made into the pool and even if they had made it, they would be describing a transaction between the homeowner and the loan originator that never in fact occurred when compared to the flow of funds at and after closing.

Ron Ryan, Esq,, a lawyer leading the fight in Tucson, writes: The issue of separation of ownership of the Loan and Note from ownership of the Deed of Trust has become outdated as a viable theory.  I am finding that there is more success when reducing the number of issues in a case to those that have a real shot at a total win.  In my opinion it should be left off pleadings, although the “nullity” rule of law can be pointed out in reference to MERS.  The separation argument could at some point in time become relevant again, IF it can be SHOWN that the same loan was sold to two separate parties or entities at the same time.

47 Responses

  1. http://livinglies.wordpress.com/2011/06/14/ny-appellate-court-mers-is-a-fictional-character-like-donald-duck/

    On appeal, the defendants argue that the plaintiff lacks standing to sue because it did not own the notes and mortgages at the time it commenced the foreclosure action. Specifically, the defendants contend that neither MERS nor Countrywide ever transferred or endorsed the notes described in the consolidation agreement to the plaintiff, as required by the Uniform Commercial Code. Moreover, the defendants assert that the mortgages were never properly assigned to the plaintiff because MERS, as nominee for Countrywide, did not have the authority to effectuate an assignment of the mortgages. The defendants further assert that the mortgages and notes were bifurcated, rendering the mortgages unenforceable and foreclosure impossible, and that because of such bifurcation, MERS never had an assignable interest in the notes. The defendants also contend [*3]that the Supreme Court erred in considering the corrected assignment of mortgage because it was not authenticated by someone with personal knowledge of how and when it was created, and was improperly submitted in opposition to the motion.

    Here, the consolidation agreement purported to merge the two prior notes and mortgages into one loan obligation. Countrywide, as noted above, was not a party to the consolidation agreement. ” Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident’”

    Therefore, assuming that the consolidation agreement transformed MERS into a mortgagee for the purpose of recording—even though it never loaned any money, never had a right to receive payment of the loan, and never had a right to foreclose on the property upon a default in payment—the consolidation agreement did not give MERS title to the note, nor does the record show that the note was physically delivered to MERS. Indeed, the consolidation agreement defines “Note Holder,” rather than the mortgagee, as the “Lender or anyone who succeeds to Lender’s right under the Agreement and who is entitled to receive the payments under the Agreement.” Hence, the plaintiff, which merely stepped into the shoes of MERS, its assignor, and gained only that to which its assignor was entitled (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126; see also UCC 3-201 [“(t)ransfer of an instrument vests in the transferee such rights as the transferor has therein”]), did not acquire the power to foreclose by way of the corrected assignment.

    In sum, because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to show that it had standing to foreclose. MERS purportedly holds approximately 60 million mortgage loans (see Michael Powell & Gretchen Morgenson, MERS? It May Have Swallowed Your Loan, New York Times, March 5, 2011), and is involved in the origination of approximately 60% of all mortgage loans in the United States (see Peterson at 1362; Kate Berry, Foreclosures Turn Up Heat on MERS, Am. [*6]Banker, July 10, 2007, at 1). This Court is mindful of the impact that this decision may have on the mortgage industry in New York, and perhaps the nation. Nonetheless, the law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership, to secure the dependable transfer of property, and to assure the enforcement of the rules that govern real property. Accordingly, the Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211(a) (3) to dismiss the complaint insofar as asserted against them for lack of standing. Thus, the order is reversed, on the law, and the motion of the defendants Stephen Silverberg and Fredrica Silverberg pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing is granted

  2. Dear ian,

    Each sales agreement assigned 10 digits.
    The ‘transactions’ between each seller and buyer are for ‘multiple products’ related to the same property.

    Pooling Insurance
    ‘Asset Portfolio’
    selected asset credit increase issued before consumer ever reviews and signs mortgage.

    Min Ord ID – 7 Digits
    10 Digits reflects Sales Agreement

    The more transactions the more ‘deposits’

    The goal not loans

    The goal deposits

    Every deposit into CTS (Corporate Treasury Securities) ‘owner’ of bank places asset in their name.

    Therefore would the separate policies on separate agreements be fraud? Your assuming they relate to your mortgage. No they are business transactions of multiple parties in multiple lines of business.

    Could the ‘intent’ of the substantive omissions to a consumer be collected and used to bring evidence before a court? Yes.

    That would require consumers working together for the evidence is stored in each borrower folder of every settlement agent who received funding from unrelated third party lender (whose credit line was utilized in a transction) to procure cash for an ‘asset’ (credit line increase of asset) (receivable line increase)….

  3. Dear Gwen Caranchini,
    We lift you up in prayer you’ll be with recall of wisdom passing bar exam to take your place protecting nation one mortgage at a time. Where there are two or more are gathered in his name thy will be done.
    Mary

  4. Dear Gwen Caranchini,
    We lift you up in prayer you’ll be with recll of wisdom and pass the exam for when there are two or more are gathered in his name his will be done. Many blessings.

  5. NEW CENTURY MORTGAGE & HOME123 CORP. VICTIMS—THEY DID THE ASSIGNMENTS IN BLANK AND MAY STILL BE DOING THEM EVEN AFTER THEY DECLARED BKR IN DE.

    http://www.scribd.com/doc/57612366/THEY-DID-ASSIGNMENTS-IN-BLANK-HOW-NEW-CENTURY-MORTGAGE-AND-HOME123-CORPORATION-DID-IT

  6. If the SEC has already charged and settled loan originator for accounting and stated-income fraud. And the Investors and shareholders have already sued by class actions and settled for the same. Can those cases be used or will the case turn into prove that it happen to you.

  7. Seeking,
    my email address is pamlinc@msn.com.

    THANKS for responding and I look forward to hearing from you,

    Pam

  8. Seeking, we are fight bank of america as well what address did you mail your qwr to. I mail our qwr certified to bank of america corporate office. Customer would not provide a mailing correspondence address. Thank you in advance.

  9. Pam……yes, let me know your e-mail address and I will send you some info.

    ~Seeking

  10. zunni, I never left. I just had to take a break. You know, I’ve been here since August 08. I had to get some breathing room. I took the loan mod under duress of losing on the motion to vacate. Paid for a few months, made a little dough, and worked on this action. The tide is turning out there folks, slowly, but the word is getting out. Don’t expect any of the networks to jeopardize their advertising revenues from the big 5 banks by telling homeowners their mortgages are unsecured debt. “THERE, I SAID IT.”

    I concentrated on the PSA, the modification clauses in the PSA (very limited), and submitted 40 exhibits. The pleading for that Alabama case was quite specific on the NewYork Trust law. Used a lot of that. I re-presented all the fraudulent origination crap, but there ain’t a judge in town that doesn’t think EVERYBODY LIED ON THEIR LOAN APPS AND TOOK ARM LOANS CUZ THEY THOUGHT IT WAS SEXY. These judges listen to liars all day, then they get some guy who can’t pay his mortgage (for whatever reason) and they think, “f**k this guy, I had to pay for my house, why shouldn’t he? The bank lied? C’mon, they don’t lie to me! Why would they lie to you? Get the f**k out!

    But I will find out this time around (different judge, same building) if the rule of law matters in this town. I beefed really hard (complaints against lawyers, complained about the judge) but I probably lost on procedure and pleadings after all was said and done. Lucky for me I got a “free pass” when they withdrew the judgement. I just hope I don’t get “res judicata’d” out the front door. Don’t think they can. This is on my dime now!

    BSE, If your out there, I’m thinking about ya. I know that if I lose this one, I’m out, too.

    And will some of you people please come buy a car?
    A-MAN? What are you driving?

  11. Thanks, uprootedone—for all you are doing.

    Meanwhile, here is a quote from the Bernanke article in the Huffington Post today:

    “The conclusion of the Fed’s bond-buying program, known as “Quantitative Easing 2,” does not mean the stimulus will come to a complete stop. The Fed will reinvest maturing securities, mainly mortgage-related debt, which analysts predict will run at $12 billion to $16 billion per month.”

    How does the “mortgage-related debt” mentioned in that quote relate to the “mortgage debt” we have been talking about here?

  12. Carie,

    We are working with a spanish group in Fresno Ca. you won’t believe the
    stories we’re hearing.

    I have been talking to a lady who has two daughters, their last day of school was today.

    Their home was sold at a trustee sale. Everyday they leave in fear and shame the girls 13 and 17 play with the local neighbor hood kids, yet everyday they know that the Sheriff might show up and remove them from their home, a home they grew up in, they have lived their for 10 years.

    Like most of us they have become victims of this giant Ponzi scheme, the banksters/pretenders takes NO prisoners… they don’t care what color you are ..they are coming for your home.

    What makes this story even worse is that because of the language barrier they have also been victimized by loan mod scam artist.

    When we started working on the Smoke and MERS documentary we wanted to bring people together… we wanted to give people a platform where they could tell their story, if the Court will Not listen… we will listen to there story.

    I have to say I have met some of the nicest, most hard working, honest people…
    these are not deadbeats! These are proud homeowners who have been screwed by the system. Smoke and MERS is NOT like other documentary films. We will expose the truth, and let the chips fall where they may.

    If you notice it is the Banks that are lying, committing fraud, if you have ever tried to get a loan mod you know how much paper work the homeowner has to have in place before their application is even accepted… yet the Banksters can’t produce ONE document ..the Note.

    Banks foreclosing on active duty Troops… Troops fighting for our Freedom.
    American homeowners being thrown out into the streets.
    Judges turning a deaf ear and a blind eye to Fraud.
    Phony robo signed documents everywhere you look.

    People facing foreclosure are living under an enormous amount of mental and emotional pressure.

    Just my two cents

  13. Seeking,
    I’m interested in your experience with Stank of America. They “service” my “loan” but It was also assigned to BNY Mellon. I sent them a QWR but may not have approached it with the specificity you did. Would you mind sharing the version of the QWR that you used?

    Could you tell me how you contacted BNY Mellon and who you “spoke” with?

    I’d like to “stay tuned” to what your experiences are in court, if you go that route, now that you have obtained this information. Would you be willing to email me about that? If so, I’ll give you my email address.

    thanks,

    Pam

  14. This is so upsetting—my husband just told me about someone he knows getting kicked out of their house from a foreclosure—they are Hispanic and the father doesn’t speak English, and the son is only 15. They are sleeping on the floor of a neighbor’s house. I don’t know anything about it except that they were told they had to leave because the house had already been sold!!!! Unbelievable. The blatant foreclosure fraud continues unabated…when will the massacre stop??? How can I help this family? Who is there to help our non-English speaking friends?

  15. anyone have any info or theories on this? If a note has been found to be held by 65 different trusts or 31 different trusts or whatever number, would this mean by inference that each trust insured the same loan 65 times, or 31 times? A lender’s title policy can’t cost more that 1500 bucks on a 200K home- so if the loan is removed by the trust, are the loan numbers (just answered my own question) different in each trust for the same loan. ANONYMOUS- I think this proves the ‘red flag’ raised by changing loan numbers. And this is why they change. Here the insurers get robbed while the ‘lender’ gets reimbursed.
    SO- the loan, as reported in the SEC docs to the ‘investors & certificate holders’ is one of many which has been removed from the Trust, pursuat to Trust law, and REMIC/REIT IRS rules. Even though the notes were never transferred into the Trust. Here the investors get robbed while the trust gets reimbursed.
    NOW- The TBTF Banks, crying foul over huge losses caused by toxic assets, receive trillions and trillions from US taxpayers. But the banks aren’t holding the notes either, and had no losses to speak of. Here the taxpayers get robbed while the banks get reimbursed.
    THIRDLY- the default debt buyers/hedgefunds/distressed debt buyers are buying collection rights on the now unsecured debt. BUT IF THE HOMEOWNERS FIND OUT THAT THE DEBT IS UNSECURED, THEY MAY JUST THUMB THEIR NOSES.
    Enter the servicer- provides a thin veneer of credibility to an increasingly suspicious series of transactions and gobbledygook to assuage the gullible borrower, who remembers borrowing something from someone, but has become confused due to the onslaught of servicer changes, rate adjustments, bewildering accounting practices and terminlogy, and isn’t sure who they owe whom for what. Here the homeowner/taxpayer gets robbed while the servicer gets reimbursed.
    Check your credit reports-if your loan number(s) changes, and as scheme comes under increasingly hostile state and federal scrutiny, your loan number will change for no apparent reason, while the unapparent reason is that the loan was just paid off again and is being purchased by some other entity.
    And now it starts all over again- …….’ Here, the insurers get robbed

  16. Usedkarguy–glad to have you back in the fight!

  17. Gwen,

    Good luck on the Bar Exam! We need more crusaders like you in this fight!

    Keep up the fight!

    ~Seeking

  18. Carrie,

    Yes, they will tell you that if you hit the right person. No I contacted BONY Mellon in a very nice e-mail and the nice lady there replied in e-mail (admissible) that “Bank of New York neither owns the note, nor the property”. Well they shot themseleves in the foot! Bank of Anti-America responded in a QWR that Bank of New York Mellon “Owns” the note as they ARE the Investor!!

    Hmmmmm……Your honor, can you help me figure this out? I am confused.

    What is that sound……I hear a sucking noise coming from the distant bankers! 🙂

    Keep up the fight!

    ~Seeking

  19. Leapfrog: No i did not see your post on Bryan Cave and would be interetsed to get more info. I have been studying to take the Bar exam in mo on July 26/27 and that is taking all my time–last time I took it was in 1977! Anyway, getting involved in this foreclosure stuff has made me want to practice law again–im bored to death doing real estate and being a grandmother all the time since my husband died. Everyone out there PRAY FOR ME I PASS! bUT LEAPFROG SEND ME THE STUFF ON BRYAN CAVE! gwencaranchini@sbcglobal.net
    P.s I did discrimination law and whistleblowing law for gov employees and private sector for 30 years.

  20. and now for something completely off topic:

    Wells Fargo Reports 673,179 Active Trial and Completed Modifications through April 2011

    Make that 673,178. I just filed my suit in county court. I wont give those FOKKERS another dime. Best $265 I could have spent.

  21. http://www.huffingtonpost.com/2011/06/09/clinton-world-bank-president_n_874484.html

    If Hilary becomes president of the World Bank, does that mean she will clean up the mess her husband made by signing away Glass-Steagall??? Pretty ironic…

  22. Joann:

    The weird thing on my end is that my Indymac servicer sent me (in a email because I kept telling him I need an assignment of mortgage), a “substitution of trustee” naming Deutsche Bank as trustee of INDX 2006 AR19 (my trust). He then wrote: “this proves that Deutsche Bank owns your loan and we service it.” Of course he has nothing to say when I asked him: “Why does the spokesperson for Deutsche Bank—Mr. John Gallagher—always say (as a public statement), that Deutsche bank doesn’t own any loans and has no beneficiary interest in any loans?”

  23. Carie

    Thanks. I think I get that but the two recent cases – Horace AL and Hendricks – MI said intent wasn’t enough or that’s the way I read it anyway and they said if the transfers didn’t occur according to the strict rules of the psa and New York Trust law – no go and in the Hendricks case said the MERS assignment transferred nothing. So what I am now wondering is maybe some psa’s spell it out and others got around it somehow. Or maybe not. Maybe it just means they put in writing that they just didn’t do it and maybe that is not ok. Or is it different “strict rules” for different psa’s.

  24. @johngault:

    IMO, having the notes endorsed in blank, although not kosher to the PSA, allows the notes to be held by anyone e.g. at Countrywide’s repository with the “understanding” that they in fact are “owned” by the trust. This arrangement allows for 1. the selling of the note multiple times to multiple trusts (I personally have seen two cases where two notes were in 65 and 17 different trusts WHOLE, not to mention two other notes that were being held by the mills in both cases for foreclosure purposes), and 2. so that, in the above scenario, Countrywide can then state that they’re in fact the bearer i.e. holder/owner of the note so that they can pursue foreclosure in their own name.

    This allows them to not only have the cake and eat it too, but to eat it many times over. This is also, IMO, the reason that many in the securitization arena are now referring to these products as mortgage based securities, not mortgage backed.

    Yves Smith put it this way:

    The initial example comes in a Wall Street Journal story which finally caught up with what we have been discussing on this blog for a year, namely, that the originators and packagers of residential mortgage securities on a large scale, perhaps pervasive basis, quit complying with the requirements of their own securitization agreements as far as how the borrower notes (the IOUs) were conveyed to the securitization vehicle (a trust).

    These procedures were very carefully crafted to navigate a minefield of legal requirements. By not adhering to their own procedures (which included having all the steps completed by a date certain), retroactive fixes are well nigh impossible. Well, take that back. Legal retroactive fixes are well nigh impossible; less scrupulous tactics have become all too common, including document fabrications (a shuttered subsidiary of Lender Processing Services called DocX offered this very service for a fee). Not only do lenders’ attorneys too often show up with “tah dah” documents at the 11th hour, but there are also not-infrequent sightings of too much casual use of Photoshop as the remedy for all ills (such as two different alleged originals of the same document being submitted at different points in the same trial).

    http://www.nakedcapitalism.com/2011/06/banker-derangement-syndrome-i-lawyers-offer-to-get-rid-of-their-profession-to-save-the-tarp-banks.html

  25. More language from the psa mentioned in my post below:
    ?????

    “The trustee will not physically possess some or all of the mortgage notes and mortgages related to the mortgage loans owned by the Trust. Instead, WMB fsb will hold some or all of the mortgage notes and mortgages as custodian on behalf of the trust. The mortgage notes and mortgages held by WMB fsb will not be endorsed or otherwise marked to reflect the transfer to the trust, and assignments of the mortgages to the trust will not be prepared or recorded. As a result, if a third party were to obtain physical possession of those mortgage notes or mortgages without actual knowledge of the prior transfer to the trust, the trust’s interest in those mortgage notes and mortgages could be defeated, thereby likely resulting in delays or reductions in distributions on the certificates.”

  26. Joann:

    The trusts sold a list of fake “loans” (really only reaffirmation of collection rights), they INTENDED to acquire…sell, and THEN “originate”.

  27. Why not simplify the matter and preempt in the summary of the brief

    Investor/pretenderLender new financial product and financial services
    Consumer Assets at 100% Origination Value placed into portfolio
    Loans will be sold in toall equal to value of Asset Portfolio.

    Note Investor/pretender Lender acquires cash for the assets by using third party credit lines of (agents, brokers, dealers, distributors wholesale and retail).

    Investor/pretenderLender sells back servicing rights of assets

    Debt Collectors service loan portfolios and agree as servicers to pay Investor/pretenderLender specific amount. Servicers agree to pay whether loans are performing or non-performing.

    Loans are swapped in the servicing portfolio. Portfolios are sold and swapped.

    Period!

    Update: Finding instances of multiple pleding. Who else has found evidence. Lets get a post going on this so consumers can figure out how to investigate and report to AG’s.

    Investor/pretenderLender utilized full asset and multiple-pledgings are being realized. How?

    The loans against the asset (to different individuals) are all performing so no one the wiser (yet).

  28. Found this language in a PSA. What does it mean? That with this PSA transfers were not necessary? Or does it mean the investors own nothing? Or does it violate other laws re psa’s, like state laws or sec laws or New York Trust Law or other?

    “The mortgage notes will not be endorsed to the Trust and no assignment of the mortgages to the Trust will be prepared. Washington Mutual Bank fsb, a wholly-owned subsidiary of the servicer, will have possession of and will review the mortgage notes and mortgages as custodian for the Trust and financing statements will be filed evidencing the Trust’s interest in the mortgage loans.”

  29. […] MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR’S COMMENT: The argument for separation of the note from the mortgage is finding a lot of resistance from the Bench, as Ron Ryan writes below. I agree with him up to a point. The fact remains that at the very start of the transaction, the receivable (cash trail) is separated from the documentation. Whether you call this separation of the mortgage (deed of trust) … Read More […]

  30. RE: the assignments done in blank pursuant to the PSA’s. Okay, notes may be endorsed in blank. That’s crap, tho. Why didn’t the authors of the PSA’s want them endorsed to the trusts? Most likely so anyone could claim bearer status and foreclose. Or maybe so they could sell the same note 10 times? (who would know and that’s a Ponzi scheme) And had they been endorsed to the trusts, what would the ramifications be? What would that change as to enforcement?

    If an assignment of a dot in blank is legal fiction, just as when the note is endorsed and is the property of the trust but the assignment of the dot wasn’t done, aren’t the note and collateral instrument similarly bifurcated?

    Bifurcation is not illegal, I do believe. It may be done by intent (which I don’t get because the dot without the note is nada). Thing is, though, there was NO expressed intent in the PSA’s to bifurcate the note and dot. In fact, even using the bs language used by the authors, the intent was that the dots be assigned, even if not recorded.
    Had the assignments been assigned to a named party, namely th trust, there is no
    or little doubt they would have been enforceable by the trustee. (But then, I also note,
    the PSA’s don’t seem to give that authority to the trustee Hmmmm….)

    Was the language in the PSA designed to make the investor believe these “in recordable form” assignments would in fact be recorded? Oh, what a wicked web.

    The drafters of the PSA were obviously “looking forward” when they drafted that
    mullarkey. They had the notes handled, by allowing for endorsements in blank. But what about those cumbersome, pesky collateral instruments? Get it? An unrecorded interest in real property, such as an assignment of a collateral instrument, is binding on the parties thereto, in this case “MERS” and the trust, had they been
    properly assigned. But they’re not binding on the homeowner until they’re recorded, or until he is noticed in some other fashion.
    They didnt’ want that. It would mess up snarfing your house.

    So, the collateral instrument is either not in the trust or bifurcated. There are no other choices. Even if the dot follows the note, the dot then followed the note into the trust (assuming it got there) and MERS was toast.

  31. […] MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S COMMENT: The argument for separation of the note from the mortgage is finding a lot of resistance from the Bench, as Ron Ryan writes below. I agree with him up to a point. The fact remains that at the very start of the transaction, the receivable (cash trail) is separated from the documentation. Whether you call this separation of the mortgage (deed of trust) … Read More […]

  32. Joann–I don’t know for sure. I would think it’s definitely something to explore, if nothing else, to cast doubt in the courts’ mind as to where the “loan” really came from.

    And I agree with Dave K–if the district judge wants to ignore the Supreme Court, that district judge does so at his/her peril. Well, not peril, but you know what I mean.

    Now that I think about it in the context of “peril”–that’s why the judges ignore black letter law: because doing so does not put them in peril at all. It just makes the hurdle that much higher for the homeowner, ie, once they decide a case and ignore the law, then you have to appeal. It’s all about pushing us as far as they can, hoping we’ll give up–and there are really no consequences for the judges.

    So the obvious thing to so is–don’t give up! Represent yourself if you have to. Whatever it takes–resistance is victory.

  33. Financials are in a free fall…they see what’s coming…

  34. MERS is not a joke. For Gods sake. Your talking out of your ^&%.

    It is a nominee used as a custodian for bailment purposes. If it is manipulated , likeit is , that is a culpable offense . MERS only holds asset for entites in formation . Why is MERS a joke.

    Get your facts straight. Your being irresponsible.

    expert.witness@live.com

  35. Gwen, many kudos to you for including the breach of fiduciary. You must know how happy I am to see this. Wish you the best.

  36. Cannot tell you how many loans i bought in a lifetime without a live note. Lost note affidavit. No drama no scandal no 911 in a crowded theater. Least color of title will beat the lost note ….Defense Bonner – The note was lost to the trust and the asset was charged to one or more means of satisfaction to extinguish the trust hold on asset and release the “INTEREST” for recourse purposes to permit foreclosure.

    Poor Judge say’s “I can’t take much more really!

    PERFECTED SECURITY INTEREST
    In Any Assets of the FDIC Institution

    Here is the gravamen for action and causes ; understanding the controversy. This I believe it to be the core or central issue from which the seed of controversy has blossomed a multitude of claims beliefs and broad based argument. Loans secured by the institution’s assets. Can the FDCPA DC face the heat and address the rights to legally enforce or perfect security interest in any assets of the failed institution.

    No Sir –S/ he cannot!Consider where such interest is taken in or with the intent to hinder, delay, or defraud the institution or the institution’s creditors. A business trust assures creditors and others with valid security interests against the institution that their secured claims will be recognized but a secured creditor only has rights in the collateral equal to the amount of the creditor’s claim; once that claim is satisfied,& the lien is of no further consequence.”Gene Autry happy trails”

    The lost note Hint Hint ….
    1)Lost my Keys
    2) Lost my Dog
    3) Lost a game of Chess (Big Difference)

    E=Mc2 Mass Squared Physical Note ; Sir Issac N. Apple fell on head/ Vs. he then eay the apple. Apple lost to branch apple forever enjoined / natural act . He ate the apple also enjoined. Ist no claim but the latter is theift.

    (You think I am guessing here ? I was one of them 20 years ago and started this sham. But I got out . ….This crap has gone on for 10 years – get it.Fannie and Freddie – Gov / banks owns the preferred and Wall Street made a fortune for 50 years. Oh oh …tunr it upside down and Banks / Gov on the Common and world buys the preffered. Pres. Dick Cheney was brilliant . But george Sr started it in motion …G Jr finsihed and got a little too greedy . Hey Attorneys ..Ive listened to your argumetns and ….non sense. Enough ….Mal Practice its coming ….Hmmmmmm

    The FDIC guarantees that the secured party will receive full value of its valid claim, up to the value of the collateral.2326Under the so-called D’Oench Duhme doctrine, which has subsequently been codified in the Act, no agreement which tends to diminish or defeat the interest of the FDIC in any asset acquired by it under Section 1821 or Section1823 of the Act, either as security for a loan or by purchase, or as receiver of any insured depository institution, shall be valid against the FDIC unless such agreement:

    http://foreclosurewebpage.wordpress.com/2011/06/10/335/

    The FDIC is limited in its ability to repudiate loans secured by the institution’s assets. Wake up America ! My bes bet – DO NOT DO NOT PLEAD A WRONGFUL FORECLOSURE – DO NOT! Let them Robo themselves to death ! Applaud it Good Job Fools !

    My Gag order expired last nite at mid niight – free at last!

    expert.witness@live.com

  37. I was just reading the complaint in FHLB v ‘Everyone’ (below) and noted that the psa’s call for an assignment of the dot / mtg in blank (that’s bs and some courts have said forget it) in recordable form. (Why didn’t the jokersters who penned the psa’s want those docs recorded – they wanted ‘recordable’. Really. WHY? We all know they never intended to record them.
    Is it because they knew the loans were cr– and they would be having MERS and the servicers trying to f/c?? Okay, if not this, then WHY?) ) I’ve read these 10 times before, without the light bulb:

    We all know I think MERS is a joke, it’s legally no one as to loans. But, I give: If PSA’s call for these assignments, then MERS is/was toast on that score because it has ALREADY ASSIGNED THE DOT / MTG regardless of whether or not that document got recorded. (And what’s that supposed to be? A ‘bearer” assignment? Quelle blag!)

    Why then is/has MERS done ‘new’ assignments when it has already done them pursuant to the PSA’s??
    Is this an admission, if nothing else, that the ones done in blank were just cr–? If that’s true, then of course, there was no compliance with the terms of the PSA. Now is this further evidence that the loan is not in the trust? At least the collateral instrument?
    If on the other hand, they’re not cr–, then my first question seems to me to be the 64k one….? I mean, if MERS alienated itself with the ‘PSA’ assignments, then what the heck is it still doing in the act? Why were foreclosures done in MERS’ name when MERS had alienated the dots by the assignments pursuant to the PSA’s, even in blank???? Were the dots assigned back to MERS by proper assignment and we all got stoned and missed it? No, they weren’t.

    Someone here might help me figure out the impact of this. Rants don’t do any good.
    Or have I already said what there is to say? MERs was toast (just on this scord) and allowed its members to foreclose in its name , anyway.

    For those of you who have already been foreclosed on, there’s that thing called
    ’emerging law’, I think it is. One of the reasons post foreclosure suits have been
    unsuccessful is the judge says, well you could have made these arguments
    pre-foreclosure. No, you reasonably could not have, and the ‘reasonably’ is significant.
    It is only with the unfolding of the true facts about securitization, by and large discovered in various court actions that we the polity have only recently come to know, even had a chance of knowing, what has been done, what a rotten can of worms we found ourselves in. Cases adjudicated AFTER your foreclosure may be used to support your claim about the bs-ness of your foreclosure. Cases determined after yours are referred to as ’emerging law’. There may be another name, but I can’t think of it. So if your jurisdiction hadn’t made certain determinations when you got the shaft, you may be able to now introduce those decisions to your benefit.

    Many people think the investors knew whaddup. This case begs to differ. CYA? It doesnt’ look like it to me, but could be. The investors are making the same arguments we do, only from the other side. BS appraisals, no lending standards, bad loan programs, loans not make it into trust. It’s an interesting read. You might even want to borrow some of their allegations.

    http://www.scribd.com/doc/57512493/FHLB-v-Everyone-Securities-Fraud

    If you decide to read this, first look at the index of points and then go to the pages
    that interest you.

  38. I just finished reading a memorandum from the 9th circuit court of appeals. It has alot of great information in it, including the role of the loan servicer.

    It also addresses MERS (as In re Weisband) (see also Wilhelm).

    Is the author of this article the same attorney as for the appellants in this case?

    The lawsuit states “not for publication” but may be cited for whatever persuasive value it may have”

    Are there any comments on this desicion???

  39. June 10, 2011 Capital Hill
    Rod Class Goes to Capital Hill Video
    Trading with the enemy Act
    State of Emergency
    Mortgage Fraud
    1933 Bankruptcy

  40. Yep … this posting takes the cake.

    You might as well dig up the 1872 SCOTUS and tell them they are all full of s**t for issuing this ruling in the first place. I know for a fact that this decision is a lot older than we are. I particularly don’t care if a judge can’t wrap his head around the concept or not … it’s still there and it’s still appealable. This is why we have appellate decisions … because the district court judges don’t always get it right!

  41. MERS appears on my mortgage but not on my note. There is no evidence of MERS on the note. Consequently, the note and mortgage have been separated. The note was the important part for the pretender/lender, because it represents the money. Looks like there were separated.

  42. zurenarrh

    What if funding letter shows funds wired from the “title company (same name) Trust FSB” to the “title company Co.” – nothing about excess funds? Nothing about “lender and beneficiary” who is named on the deed of trust and the note? So without further disclosure the “lender” was the title company Trust FSB? – ovbiously not named in the documents? So is this obviously table funded or not? Does borrower have the right to ask the title co for anything further as in who deposited to title comany Trust FSB ?

  43. I agree with Gwen 100%–separation of Note and DOT/mortgage is very simple to understand and argue. MERS has been in existence for 10 or so years, Carpenter has been the law for 140 years. No brainer.

    But arguing that the Note is separate from the obligation, I can see how that might be a little harder to believe. However, all one has to do is get the closing instructions and it will say that excess funds should be wired to a bank other than the named lender, and there you go. Just like Neil says–table-funded, the parties named on the documents are not the real parties.

  44. Hey, Gwen. Did you see my posting about Bryan Cave a few weeks ago? They are being investigaged by FDIC for destruction of evidence. Also, BOAs attorney on my case terminated representation (Katherine Windler). She is being sued by her clients for her part in a Ponzi scheme with FBI investigation. Just thought I’d share the good news.

  45. Second comment: Outdated? When you have a U.S. Sct Case since 1872 that has never been overruled and directly addresses a MERS issue on so many of these–how can this be outdated? I’m sorry Mr. Ryan I litigated for 30 years and KISS is still the best way to go–especially when a Missouri judge recognized the issue immediately.

  46. Separating the note from the DT is too estoeric? My judge got this in a nonsecond after reading Carpenter v. Longan and pointed it out to the defendant trustee when discussing the rustee’s motion to dismiss a breach of fiduciary duty claim. (MERS assigned the DT and the PN and was not on the PN and therefore he DT was split). What’s so hard about this concent–the judge thought it actually simplied the case! Unfortunately when MERS entered an appearance they immediately removed (on fraudulent joinder grounds–claiming the trustee did not need tobe added to the lawsuit). I am now writing a motion to remand. However, obviously whoever are writing briefs on this very simple concept don’t know how to get across this siimple concept.

Leave a Reply

%d bloggers like this: