MERS $100M MICHIGAN CLASS ACTION COMPLAINT GOOD MODEL OF PLEADING

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WILLFUL CIRCUMVENTION OF JUDICIAL PROCESS GIVES RISE TO SUIT FOR DAMAGES

110509-MERS-Class-Action-Complaint

This pleading has several elements worthy of note and seem well-pleaded. Some of the “juicier” ones are toward the end. The key concept is that under recent decisions, any foreclosure and/or dispossession by MERS is VOID AB INITIO (FROM THE START, WHICH MEANS TREAT IT AS THOUGH IT NEVER HAPPENED].

Michigan had been a tough state, which is why the writers of this complaint went  to the unusual step of quoting a recent case. The issue at hand that lawyers are bringing to the attention of the courts is that there are, at a minimum, some 5 million transactions that took place relating to foreclosures that were nothing more than wild deeds.

The mistake made by the banks is that they are reassuming “what’s done is done” will take care of the title problem. Title problem don’t go away by magic. The ONLY solution to the title problem in those transactions (probably closer to 15-20 million when you consider resales and refi’s) is by getting the original homeowner’s signature ratifying the foreclosure.

Because under law, as it should be, the title registry at the county recorder’s coffice gives notice to the world the identity of the owner of the property. Were it not for political and economic pressure, no title examiner would even consider the title to be in any name other than the homeowner despite the foreclosure. Not even Wall Street can make this go away. If they get their way, Wall Street’s pernicious effect on the marketplace will become enlarged geometrically because it would mean that nobody would know if they were actually getting title on property they were buying and nobody would know if they were getting a lien on property they were financing.

Michigan was a difficult state to plead a case against MERS until April of this year. This class action, in which the damages probably are vastly understated, goes the extra step of quoting decisional law to justify revisiting the MERS question, as every state MUST do if they want to solve the puzzle of corrupted title.

“On April 21, 2011, the State of Michigan, Court of Appeals in the consolidated case of Residential Funding Co., LLC v. Gerald Saurman, (Residential Funding Co, LLC v. Saurman, 290248, 291443 (MICA)), issued a ruling stating in pertinent part that in cases where MERS did not own the underlying indebtedness, did not own an interest in the indebtedness secured by the mortgage, or did not service the mortgage, MERS was therefore unable to comply with the statutory requirements of MCL 600.3201(1)(d), and subsequently had no right to foreclose by advertisement.

“The Court of Appeals continued, and ruled that in those such cases where MERS did foreclose by advertisement upon the foregoing conditions rendered those foreclosure proceedings void ab initio.”

The causes of action are the following:

  1. INJUNCTIVE RELIEF AND DECLARATORY ORDER: Plaintiffs and Class Members request an appropriate order of this Court declaring the foreclosure actions of Defendant MERS as described herein void ab initio. [ab initio means from the start, which is to say it should be treated as though the foreclosures never happened. That means the homeowner who was “foreclosed” is still the woner and rightful possessor of the property, a result which I believe to be absolutely inevitable and necessary to preserve the sancity of the rule of law].
  2. FRAUD AND MISREPRESENTATION: Defendant MERS did misrepresent facts, or purposely fail to disclose material facts, in prosecution of non-judicial foreclosure.
  3. CONVERSION: Defendant MERS and others engaged in a continual course of conduct, pursuant to which they wrongfully dispossessed and/or disposed of the real property of the Plaintiffs and Class Members. Defendant MERS and others converted these properties into cash which they received through the sale of the subject real properties or by their acquiring title thereto.
  4. TRESPASS: MERS trespass and invasion of Plaintiffs and Class Members rights and property was willful, wanton, reckless and malicious.
  5. THEFT: MERS through their acts and omissions did commit theft upon the Plaintiffs and Class Members, whereby they fraudulently took the property of Plaintiffs and Class Members, without their consent, intending to deprive them of the value of their property, and to appropriate said property to their own use or that of a MERS member.
  6. WRONGFUL FORECLOSURE: Defendant MERS through their acts and omissions did wrongfully and illegally foreclose upon Plaintiffs and Class Members through the means of a non-judicial foreclosure.
  7. VIOLATION OF MICHIGAN CONSUMER PROTECTION ACT: Through their acts and omissions in the commission of their illegal foreclosures, Defendant MERS did violate the Michigan Consumers Protection Act MCL 445.901 et seq.
  8. VIOLATION OF THE FAIR DEBT COLLECTIONS PRACTICES ACT: (Federal) The acts and omissions of Defendant MERS involved transactions which were primarily for personal, family or household purposes. In the collection of a debt Defendant MERS did utilize means, methods and conduct which served to harass, oppress and abuse Plaintiffs and Class Members.
    97. In the collection of a debt Defendant MERS did utilize means, methods and conduct which were false, deceptive and/or misleading.
    98. In the collection of a debt Defendant MERS did threaten and utilize unlawful and prohibited actions.
    99. In the collection of a debt Defendant MERS did utilize unfair and/or unconscionable collections means.
    100.    In the collection of a debt Defendant MERS did fail to provide required written notices to Plaintiffs and Class Member.

 [PIERCING OF THE CORPORATE VEIL MIGHT BE VERY EASY IN THE CASE OF MERS, THUS ALLOWING A JUDGMENT AGAINST MERS AND COLLECTION AGAINST THE OWNER-MEMBERS.]

  1. ACTION TO SET ASIDE FORECLOSURES AND QUIET TITLE
    DEMAND FOR PUNITIVE DAMAGES:  taking PROPERTY pursuant to foreclosures by advertisement against Plaintiffs and Class Members was unauthorized, without right, illegal and in violation of MCL 600.3201, et seq. Such taking by MERS, or any other party, places a cloud upon the title ownership to the affected real property.
  2. ACTION FOR POSSESSION/REPOSSESSION: Any title relative to the affected real property to the mortgagor Plaintiffs and Class Members obtained by MERS, or any other party, pursuant to attendant sheriff sale is void ab initio per the ruling of the Michigan Court of Appeals dated April 21, 2011.
  3. INTERFERENCE WITH POSSESSORY INTEREST: Defendant MERS did illegally and without authorization, substantially interfere and negatively affect Plaintiffs and Class Members rights and interest in the affected real property. Pursuant to common law and MCL 600.2918, …. illegal acts and omissions, Plaintiffs and Class Members are entitled to damages in an amount in excess of One Hundred Million Dollars ($100,000,000.00) and possession/repossession of their affected real property.
  4. UNJUST ENRICHMENT: Due to Defendant MERS acts of wrongful foreclosure, Defendant MERS has been unjustly enriched through wrongful possession and the receipt of the proceeds of sale of Plaintiffs and Class Members affected real property. Due to Defendant MERS acts of wrongful foreclosure, Defendant MERS has been unjustly enriched by their willful circumvention of the requisite judicial foreclosure process.

43 Responses

  1. A further reading of HSBC v Taher, posted here by Barbara, also discloses that the judge issued a show cause, essentially, and ordered HSBC’s CEO and Pres, Irene M. Dorner, along with HSBC’s counsel, Frank M. Cassara, to appear at hearing to determine if they should be sanctioned for frivolous conduct. This right after he denied their claim with prejudice. He also noted that these sanctions “stand beside Appellate Division discipline cases against attorneys for ABUSE OF PROCESS or malicious prosecution”. The buck stopped at Ms Dorner, the CEO, in Judge Schack’s view, one to keep in mind when naming defendants.

    Judge Schack, based on his view of potential but not found agency between MERS and its principal, noted that agency imposes a fiduciary and MERS
    was not honoring that fiduciary.

    Judge Schack’s rulings are not binding precedent; this shouldn’t stop us from borrowing his arguments.

  2. Whoa – wait a minute! MERS’ governing documents do NOT authorize members to execute assignments to other MERS’ members. Think about this……………..

  3. @Barbara – that was a good read. It’s noteworthy on a number of fronts.
    There’s discussion of robosignors.
    The court again found that MERS could not assign the note and mortgage.
    MERS never held the note and no authority was granted to MERS to assign anything in the mortgage document. Thus, its alleged authority to assign the mortgage must be found elsewhere. From my look at MERS’ governing documents, I determined that the only time a member was actually authorized to execute an assignment by way of its MERS’ straw officer (an illegitimate schematic in the first place) in MERS’ name was when the beneficial interest in the note was transferred from a MERS’ member to a non-MERS member, and at that time, the assignment must be recorded and the loan de-activated from the MERS’ system. This begs a question, I think: to whom does the beneficial interest in a securitized note belong? It’s the investors, is it not? (Such a finding assumes certain things regarding the legitimacy of trusts.) The investors are not MERS’ members. The trustee may be a MERS’ member, but the trustee does not hold the beneficial interest in the notes. Or does he, for the benefit of the trust? If he does, mustn’t this fact be found in the trust governing documents, proved? As the judge I think it was in Wilhelm said, ‘What I need to know are some facts.”

    It actually begs another question, one which has not been asked and therefore not answered. Anyone who lost his home to a MERS’ foreclosure was affected by the following. In order to foreclose in MERS’ name (again a tweaked and illigitimate schematic – principal acts in the name of its alleged agent) , the member was tacitly warranting to MERS pursuant to its contract that the member had possession of the note. Let me interject here that MERS did NO diligence as to these ‘facts’. MERS felt that the presence of its straw officer at the member’s meant that MERS had possession of the note. In other words, a member employee in (alleged) possession of the note ‘stood in’ for MERS. Since the Koontz court (as I said, hail that judge) ruled against the validity of an assignment by a member employee posing as a MERS’ officer, I would think a court would make the same determination about such possession of a note. No court has ruled on the issue – did possession by the member’s MERS’ straw officer constitute possession by MERS?

    I am just catching up on the differences between article 3 of the UCC and article 9 and their application to securitized loans subject to governance by the terms of the psa, so will have to ‘stay out’ for the moment on who holds or doesn’t hold a note or if in fact, there is no ‘holder’ of these notes at all, as such holding would rely on article 3. However, “MERS”, read member, has alleged in at last two cases that these notes are not negotiable instruments, subject to holder provisions of article 3 (estoppel?) They did not argue this about holder or not, merely that the notes are subject to article 9, not 3. Yet, their rules required the member to physically possess the note to foreclose in MERS’ name, which to me implies their own reliance on article 3. There’s a story worth telling in layman’s terms as to article 3 and 9, but I’m not the one to tell it just now.

    Back to the question as to whether a court would find the member’s possession constituted possession by MERS, I say the answer is a very loud no. Judge Schack found, in his own apparent reliance on article 3, that MERS did not possess the note so could assign nada. I don’t know what arguments were made or not made in this particular case in support, though, of MERS’ possession of the note. I think none.

    This case also provides good cite or at least articulation of the threshold issue, the right to bring an action by the bankster which must be supported as a dispositive matter. The burden is on the plaintiff bankster to prove its right to enter the court as an aggrieved party.
    It refers to other good decisions, lest we forget, regarding MERS and banksters.
    But, what sticks out for me is the court’s discussion of proof of agency. This court found MERS could be an agent of a principal, with which I personally disagree, certainly when the language in the deeds of trust / mortgages is applied as sole evidence of agency. A nominee is not an agent. Had “agency” been intended, they would have used the word. They didn’t. However, Judge Schack provides compelling arguments for why an allegation of agency does not suffice. Agency must be proved, and is not proved by affidavits or acts of the alleged agent. This is very significant, in that a court demanded evidence of the alleged agency by more than hearsay.

  4. He has a first and a HELOC both appear to be originated directly with “Bank of America , N.A.” , the Lis Pens has “BAC HOME LOANS SERVICING , LP” as Plaintiff (a local fraudster , SMITH HYATT and DIAZ are the attorneys for BAC)…. he has multiple defenses … BAC screwed up the monthly amounts due and hit him with force place insurance ,, he has escrowed almost everything, BAC may force him to burn his escrowed payments fighting them.

  5. Hi Neil,

    Todd and I are in Orange County and it is flipping NUTS out here, we talked to some local LE who told us that it is totally corrupt out here, check it out.

    Commissioner Glenn Mondo protects Aurora Loan Services and railroads homeowners pt 2

  6. Other than that, I guess, ask for that more definitive statement. Who is asking for what on what basis and in what capacity? I mean, instead of letting them lead you to make all kinds of counter-allegations, just ask for the clarification, the more definitive statement, in some very nice legalese or even just plainly. Otherwise as your friend will find, they have way too much wiggle room. Then start with affirmative defenses, I guess, if not a dispositive motion based on what they say and substantiate, keeping in mind their threshold requirements. Be nice if a few more attorneys would get in the act here, even incognito.

  7. Well, that’s a new one. Did you really mean he got a lis pendens from B of A?

    B of A has laid off a bunch of servicing to other outfits. I don” really know what’s up with that. Accounting move?
    They’re moving loans in default, so I’ve heard. I’m sure others here have opinions.

  8. neidermeyer….originator?

  9. ANYONE …

    My friend with a BofA loan received a Lis Pens ,, BAC Home Loans Servicing , LP is the plaintiff ,, BAC is transferring all servicing to NA at this time… unfortunately his lawyer is pretty green… to me the opener should be standing/agency … ideas?

  10. In order to prevail on RICO, even a seasoned attorney would have to put his life on hold. I’d love to see it, but that’s what it would take. And it would take a bunch of money because you’re talking a tremendous amt of discovery. Maybe some altruistic do-gooder would like to pop for it because chances are, no embattled homeowner with the motivation has the dough.

  11. If you’re in court, it starts at the threshold issue. Does the party after you have a right to invoke the jurisdiction of the court? There’s this rule and there’s that rule, but underneath all of them is the maxim that only those who have suffered a grievance may enter the court and seek retribution. Peachy, you say, so what’s this mean? It means we need to ask the court to address this from the get-go. It’s just skewed -starts at “He didn’t pay.” Um, no. That’s not where it should start. I can tell you I’ve seen judges be harder on assignee’s of credit card debt when it comes to evidence of that assignee’s rights than alleged assignees of dots. I don’t mean to imply that there aren’t other factors in regard to promissory notes and collateral documents at play, but there is still the threshold issue to be resolved before fancy pants runs off at the mouth about someone being a dead beat. If you’re in court or the bankster alleges in some form ‘we were assigned the note and or deed of trust on such and such date’, hold the presses except to ask for a more definitive statement. Say there, bankster, what exactly do you mean by “assigned”?
    I just read another affidavit by the infamous William Hultman (MERS) where in he rattles on, averring that Joe Homeowner signed a note and deed of trust on like August 4, 2005.
    Cracks me up. Say what? This guy has no idea what Joe signed or didn’t sign and an appropriate response might have been to file a mtn to strike his affidavit or alternatively, those portions which don’t meet the rules. The bad news is, the homeowner didn’t object. I see these affidavits or declarations all the time averring the homeowner signed this or that from people who can’t possibly know what they’re talking about, and I’m referring to Joe signing something 6 years ago, and no one objects.

  12. cubed2k ,

    VERY NICE find , Thanks.

  13. There’s another aspect to the credit bid system that’s somewhat obscure but reproachable. It lies it the “recital” on the Trustee’s Deed that purportedly transfers title from you to the pretender. That recital invariably contains boiler plate language attesting to the “fact” that the trustee’s sale was conducted in compliance with all state statutes governing the conduct of non-judicial trustee’s sales (which state? Doesn’t matter.). What matters is that the Deed is quite probably signed by an employee of the trustee, notarized and recorded. But the thing contains a conclusory yet indefensible legal statement by someone with neither the legal expertise nor the legal authority to make such a conclusion. Is their case law that has been successful in that regard? Yup.

  14. so in the Financial world of banks and Wall Street, how do you keep people STUPID, why that is simple,

    and what people are we talking about—-why that would be Judges, Lawyers, Government workers, Senators, Congressman, Presidents, —————-why anybody

    so how do you keep them STUPID, simple, make it COMPLEX. Put many via’s on the line.

    It goes form here to here , but only if this and that, if not, you must do this, more and more rules——-

    so thus everybody is fighting over the rules, and if everybody is fighting over the rules, why those that create the rules win big time,

    Hahahaaha , the joke is on you.

  15. “prolonging an already stressful situation for borrowers and all those involved,” said Rodney Maile, ”

    Here they are trying to help you, yah right, what a spin on the truth.

  16. Carie.

    ““Shifting these cases to the Judiciary … will result in a similarly frustrating situation of a backlog of thousands of cases and further frustration and delay, prolonging an already stressful situation for borrowers and all those involved,” said Rodney Maile, administrative director of the courts, in written testimony to the Legislature.”

    Carie, that is the type of spin put on everything released to the media for, to be blunt, STUPID PEOPLE, to think with.

    And the definition of STUPID is —-unknowness of time, place, form or event. And thus if we keep people stupid, they will not fight back because they DO NOT KNOW.

    Everybody is STUPID about something. Can NEIL GARFIELD rebuilt a car engine, lets say no, thus he is STUPID about Car Engines.

    How do you take advantage of people, prey on their STUPIDITY, their stupidness. So, if you do prey on their STUPIDITY, now we are talking about some morals and ethics.

    Consider, you buy from somebody, a business customer, a friend, a family member —-you buy from them a something from their garage sale or they give it you as a gift or it’s a business transaction somehow. Turns out the thing is worth 5 million dollars, and you got it for free or practically nothing. What do you do? It is obvious the person you acquired such thing from was STUPID about it.

  17. Johngault: Your are correct that this case “was not in regard to credit bids”. It was the absence of that argument in this class action is what jumped out at me. Point is: that argument could have and probably should have been in there. It just goes to show you that even a gang of really smart lawyers can have trouble completely wrapping their brains around the entire issue. But they’re damn close. I love the effort wish them the best.

  18. Oh, and Jim, just another example of the dot trustee breaching his fiduciary to at least the true beneficiary of the dot – taking a credit bid from a non-creditor. Grrrrr

  19. http://www.huffingtonpost.com/2011/07/05/strong-hawaii-foreclosure-law-courts_n_890149.html

    from article:

    “Currently, nonjudicial foreclosures cannot be pursued in Hawaii. The judicial foreclosure process allows homeowners to raise any challenges to the foreclosure in court,” said Fannie Mae spokeswoman Amy Bonitatibus in a statement.

    Fannie Mae didn’t expand on its reasons for moving its foreclosures to the courts, and it hasn’t revealed how many foreclosures it owns in Hawaii, a fact that many of its homeowners don’t even know.

    “Shifting these cases to the Judiciary … will result in a similarly frustrating situation of a backlog of thousands of cases and further frustration and delay, prolonging an already stressful situation for borrowers and all those involved,” said Rodney Maile, administrative director of the courts, in written testimony to the Legislature.”

    IDIOTS–if you don’t want a frickin’ BACKLOG, then let them frickin’ KEEP their frickin’ HOMES and LEAVE THEM ALONE—you don’t own the frickin’ FAKE LOANS ANYWAY!!!!!!

    But oh, NO—that would be MORAL HAZARD. Frickin’ IDIOTS—YOU ALL HAVE NO MORALS AND THAT HAS CREATED A HAZARD FOR AMERICA WHICH IS CAUSING PEOPLE TO KILL THEMSELVES!!!!!

  20. http://www.iasplus.com/agenda/derecog.htm

    “The basic derecognition principle is that an entity should derecognise a financial asset when it no longer qualifies as an asset of the entity.”

    My blood is boiling…again.

  21. http://www.huffingtonpost.com/2011/07/05/bank-of-america-bondholders-settlement_n_890604.html

    NEW YORK (Jonathan Stempel) – A group of bondholders plans to challenge Bank of America Corp’s $8.5 billion settlement with holders in soured mortgage-backed securities, saying it may be unfair to other bond investors.
    In court papers filed on Tuesday in New York State Supreme Court in Manhattan, 11 companies sharing the name Walnut Place said they had “serious concerns about the secret, non-adversarial, and conflicted way in which the proposed settlement was negotiated and about the fairness of the terms.”

    Kathy Patrick, lead lawyer for the 22 institutional investors, in an interview said Walnut Place has the burden of showing that the settlement as a whole is unreasonable, or that any conflicts of interest exist.
    “Walnut Place, like every other investor, will have an opportunity to be heard,” she said. “We believe that both in its amount and in its servicing improvements, the settlement is fair to the covered trusts.”

    “COVERED” TRUSTS???

  22. well I found this today, don’t know if it was ever posted before.

    http://privateaudio.homestead.com/AFFIDAVIT_MORTGAGE_PAID_-_MJA.pdf

  23. They weren’t mine ,, the procedure here was …

    1.) clerk announces property for bid..
    2.) plaintiffs stooge announces they are owed $237,812.59 and will bid to their credit limit if required (house is worth maybe $100k)
    3.) stooge bids $100 , nobody bids against them , his assistant has a seat next to clerk and upon his “win” , the assistant pays clerk $105 (bid plus 5% tax) by check…

    If anyone actually bid a reasonable amount they would indeed bid to the limit and at that sale they would use credit. (Same stooge represented maybe 10 law firms at each auction)

    My goal was to attack the sales by corps that were not registered in Florida as they lacked standing (they could have bought standing with a simple $100 fee when filing) ,,, These foreign corps are now paying into the county treasury thanks to my complaints…

    One of the properties was a huge condo complex ($93M) ,,, the lawyer expected to bid $100 and walk away with the win ,,, he thought I was joking when I bid against him ,, a developer next to me bid $10M forcing the lawyer to bid $11M ,, they then in front of the entire assemblage conspired to retract their bids (leaving me in the high bid position) ,,, I had the chief justice of civil business complex as a witness … I argued differently in that instance ,, that they had through their retraction had eliminated themselves from the bidding… (the lawyer did outbid me as I refused to retract my bid… but at that point any action of his was irrelevant)

    I had a unilaterally called hearing with 1 days notice on that one … couldn’t get counsel and (as I noted in prior post I had a business engagement.. it was a trade show, IAAPA in Orlando, I had invested ALL my free cash in attending the show,, I have a real honest to goodness CASTLE I need to sell ,,I had just hooked up with a pair of Israeli waterpark operators with $$$$$$$$$$$$ ,, they wanted me to scout mall properties for their purchase) I couldn’t get the Israeilis on the phone fast enough as they were in transit back to Tel Aviv … The hearing officer was the judge that was MY WITNESS … I lasted about a half hour … I should have been dead in under 5 minutes ,,, the judge had “amnesia” at first but his memory improved whenever it would help my opponent…

    If any lawyer in Orlando wants to help me with a quiet title (duplicate of the VEAL situation) and to take a whack at the Paramount Condos on lake Eola (or at least get Judge Lauten fired) let me know , I’ve got land to barter but no cash…

    I do have an audio recording of the hearing ,, not surprisingly it differs from what the oppositions reporter came up with..

    **********************************
    The court changed from open outcry to an internet based auction format because of the fraud in my auction that got the head judge caught up in it… NINJA9 ORLANDO
    ***********************************

  24. As a counterpoint to Jim, I’ve said it several times that simple is better for this, and Federal RICO is far from simple when wrongful foreclosure and quiet title do the job just fine.

  25. I’ve said it before and I’ll say it again. Relief for the individual homeowner lies in filing suit in federal court citing the RICO statute because organized crime is the common thread that we’re all dealing with here. Do it pro se or do it with a lawyer. Just do it (sorry Nike).

  26. John, you and I did make opposite assumptions about the question. Are they your properties Neidermeyer?

  27. I guess I figured those homes neidmeyer talked about were his. But if not, well, now that’s interesting. Where would those chips fall? I don’t think but don’t know that neidmeyer has standing to sqwauk about the trustee issues, just the credit bid. So, then, where WOULD those chips fall? If he is not the owner of the properties, apparently the homeowner didn’t sqwauk -doesn’t mean he won’t down the road -think clouds, lots of clouds. You may have to include a qt against the owners and in doing so, will inform them of the very issues they could advance. And do you mean to do that? Not a judgment, just a question. That’s a lot of work.

  28. @neidmeyer, Well, we all know I’m not an attorney. I think you need to re-open your prior complaint to allege real grounds which support a determination the sale was not a sale. But remember to include your statements about why re-opening a case is procedurally appropriate. I wouldn’t know about a statute of limitations. It’s more complicated because you already filed something and apparently lost. Would the court see this as a req for reconsideration? Since the credit bid was known to you when you filed the post-f/c action, the court isn’t going to view the credit bid as something you couldn’t have previously argued in your complaint. But, maybe you could try the emerging law angle, if your search finds no or only recent cases supporting the fact that some credit bids are no bids. If you want to spend the time, you could look at rule 60’s reasons for seeking reconsideration and see if you can frame a sustainable argument under any of its provisions. If you were in state court, tnharry might want to weigh in and maybe he will, anyway. I wouldn’t do anything without popping for loislaw and researching certain issues: credit bids and rule 60, to start.

  29. @Neidermeyer – interesting gambit to point out invalid credit bids, but what about this counter argument : If the trustee or other entity was improperly appointed or otherwise not empowered as you say to enter a credit bid, isn’t the whole sale likewise invalid? It sounds like your own argument could be used against you. Even if you convinced a judge of this theory, wouldn’t the original homeowner remain as owner? You could spend time and money and help a stranger.

  30. TNHARRY , johngault ,

    I have about a dozen properties where I bid against the bank and lost (intentionally ,, I wasn’t going to bid retail on a property worth half) where me and the bank were the only bidders ,, I then filed complaints claiming lack of standing (invalidly substituted trustees and corps not registered in my state that didn’t pay the correct fees ; which implies the credit bid is invalid…unfortunately a business obligation interfered and took all my available cash and time ,, I lost the fight(s) by default.. Some of these properties were REAL NICE ,, some were dogs .. I was basically really trying to get the auction rules changed (in that regard I won) …

    How should I proceed to get back in the game?

  31. […] via MERS $100M MICHIGAN CLASS ACTION COMPLAINT GOOD MODEL OF PLEADING « Livinglies’s Weblog. […]

  32. And about those full loan amount credit bids. What happens next?

    They sell the house for much less than the amount of the fake credit bid, and take a tax deduction for the difference between the money they actually got in the sale and the amount they never really paid.

    Tax evasion. But there’s no way to audit that since it’s based on booking the value of the credit bid. For money that never existed.

    What a way to make money!

  33. http://www.dailymail.co.uk/news/article-1335804/Patsy-Campbell-The-great-grandmother-lenders-nightmare.html

    Patsy Campbell—MY HERO:

    …”By representing herself she has also learned the legal system so well that any effort by a lender to to repossess her home is met by such a flurry of paperwork they can hardly cope.
    ‘They’re not going to take this house,’ Ms Campbell defiantly told the Wall St Journal. ‘I intend to stay in this house and maintain it as my residence until I die.’”

  34. @The A Man – a lot of divorced couples would certainly agree with that.

  35. @Jim – yes, the credit bid is troubling. Imo, as I’ve said , it’s no bid. NO bid = no true sale. To make the argument, you have to start with the definition of ‘creditor’. The “Agard” case, for instance, spells out who is a creditor, as do others no doubt. But this important discussion was not in regard to credit bids. In my opinion, the holder of a bearer note iand even some other notes is not the creditor. According to Veal, which must follow the UCC because the judge didn’t re-write the UCC, a holder who is not the owner does not receive the benefit of the collateral. To receive the benefit of the collateral would take a proper assignment and there are no proper assignments being done.* They’re being done by member-employees to themselves, as determined in Koontz (thank you, judge, thank you!). Just a note – if you want the court to determine that the assignments are self-made, self-executed, you need to make the argument.

    *But, when the holder is not the note owner, and an assignment of the dot is done to the holder, isn’t the collateral instrument now certainly separated from the note owner? Shouldn’t this mean the note is unsecured and the deed of trust is a worthless piece of paper which a bifurcated dot is?

    Going back to Agard, the court acknowledged the bankster’s argument that generally a dot follows the note, but the court specifically states that under the MERS’ machine, the participants have chosen to alter that state/status/dynamic.

    I really think that once one has established that the forecloser was not a creditor by definition, not a party entitled to a credit bid, the chips should fall in the homeowner’s favor. Just a reminder, the homeowner could not have argued against the event, the credit bid, prior to its occurrence. Now, if you’re a litigant in a case where f/c has not occurred, and the banksters says it wants to foreclose, maybe you could ask for a more definitive statement, that is, you want to know if such f/c includes a credit bid. Or if a f/c action , notice of default, etc., has been filed against you, you might open a case and ask the same thing. I wish everyone had good, competent representation, but that’s not the case. Some of that is strategy, what would work best, but without counsel, I guess you just take your best shot.

    I would like to read more of this case Mr Garfield has posted, so if anyone has a link to any of the documents, please post it. But, this case as far as I can tell does not include the credit-bid argument. In fact, I can’t think of one which does. I don’t think it was raised by anyone except the court even in Agard.
    As to defeating the class certification of the case posted here, hopefully the homeowners’ attorneys anticipated the argument and others akin.

  36. The Art of War a must read in my opininion.

    http://en.wikipedia.org/wiki/The_Art_of_War

    TnHarry I agree with you regarding Class Action Law Suits I go even further any case that goes to Trial is a loss for both sides. The trick is not to get to the court room at all.

    NEVER AGAIN

  37. Class action or no, what seems to be missing from these arguments is an issue that has been touched upon in this forum more often of late: “Credit Bids” in non-judicial trustee’s sales. It is routine for a “lender” places a credit bid, using the face value of an unsecured note as the equivelent of cash. And the foreclosing trustee goes along with the scheme and treats such notes as if they really are secured. But anyone else who might wish to bid needs cash, up front, to “compete”. Fact is, there is no competition because the credit bidder can set his bid high enough to discourage anyone else who is required to pay cash. So guess who gets the house FOR FREE and then sells it “at a loss” to a cash buyer after listing it with a real estate agency.

    It’s bid rigging. And since it is usually done interstate it’s a clear violation of the Sherman Antitrust Act in addition to RICO. In addition to the foreclosing trustee’s potential liability, I wonder how many real estate agencies have any idea what sort of liability they may be exposing themselves to by participating in this process.

  38. Great Job Here
    Now perhaps we can use this case in a judicial State such as Wi.
    What about the foreclosure lawyers that signed the MERS assignments as VP of MERS and Certifying official. I was told by the AG of WI that they do not handle individual cases. so Pro Se I did the best I could claining the MERS assignments lacked standing for the Plaintiff to foreclose. I want these houses back. It is not on me that they were illegally taken from me and sold to the public for a deep discount.. The Plaintiff must get a kickback from Insurance because I was asking for Mods. to pay the full amount. I can’t help it that the NEW “owner” did not do due diligence. He can sue who he must. I am the caregiver of my 92 year old Mother , who is disabled. I am a 100% disabled combat veteran. I bought a vacant lot next to my house that I lived in for 30 years. I bought the lot in a tax sale from the City of Racine 20 years ago. I built a house on the lot 10 years ago and then I got a cash out loan Fannie Mae loan and got caught up in this MERS business. Does anyone know if I had added rights because I owned the lot for years and did not take out a purchase money loan?
    Anyone?
    Stan
    Racine, WI>

  39. This case isn’t filed by a state – it is a case filed by homeowners against MERS. The state government isn’t going to to help you. The federal government isn’t going to help you. Obama isn’t going to help you. You have the obligation to help yourself. File your own case if you need help. Way to much waiting to be helped still going on here…

  40. THIS SUITE SHOULD BE A MODEL FOR ALL OF THE STATES, FURTHER WHY IS THE U.S. NOT TAKING IT TO THIS STEP, WHERE’S THE U.S. AG, CORUPTION IS CORUPTION IN ANY STATE AND THE BANK FRAUD AND CORUPTION HAS CROSSED ALL STATE BOUNDRIES.
    IT’S UNFORTUNATE FOR THE HOMEOWNERS THAT ALL OF THE STATES DO NOT HAVE ATTORNEYS WITH THE BALLS TO PRESS ON AND HELP HOMEOWNERS IN INDIANA AND OTHER STATES.

  41. Go get ’em I say. This was stupid and flawed legal practice from the beginning. Anyone involved in the foreclosure world should have known better than to foreclose in the name of MERS anyway – not only has MERS never had any interest in the notes themselves, but both MERS and the servicers have been instructing their counsel for years not to foreclose in the name of MERS. Hopefully it’ll be big enough to have some bite, but historically class action cases have really only benefited the class action attorneys. And I’m reminded of the old maxim that real estate is unique, so I wonder if that alone is enough to defeat class certification.

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