Nevada Supreme Court Will Hear Question on Lack of Certification of Ownership of Loans

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“I can tell you I wrote the rules. … I know what they say,” Gibbons said. “You’re supposed to produce these documents and prove ownership here. You can’t just blow off (that) certification means nothing. It means a lot. It means that these people who sign these documents have a right to sign them (and are not) fictional people forging names.”

By SANDRA CHEREB
THE ASSOCIATED PRESS

CARSON CITY — The Nevada Supreme Court weighed arguments Wednesday on whether U.S. Bank can foreclose on a Douglas County couple’s home even though not all required documents were presented during mediation.

Lawyers involved in the case said the court’s ruling could have wide repercussions on foreclosures in a state hard-hit by the collapse of the housing market.

Attorneys for Andrew and Lauretta Davis want justices to send the case back to Washoe County District Court for a hearing on whether documents handled by Mortgage Electronic Registration Systems, or MERS, were signed by an authorized officer and properly conveyed the Davis’ mortgage from the now-defunct Ownit Mortgage Solutions to U.S. Bank.

The couple’s attorneys claim MERS lacked the authority to assign the loan to the bank.

“The certification for this assignment was not produced,” attorney Mark Mausert argued before six of the high court’s seven justices. Chief Justice Nancy Saitta missed the session but is expected to listen to arguments before a ruling is handed down at a later date.

A lawyer for the lender countered that issues raised by the Davis’ attorneys go beyond the scope of Nevada’s Foreclosure Mediation program, and that disputes over the validity of documents should be addressed in a separate lawsuit.

“Courts across the country have repeatedly found MERS is in fact an appropriate entity to execute an assignment because that right is given to them in the deed of trust and agreed to by the borrower at the time the loan is originated,” said Kristin Schuler-Hintz, a lawyer for the bank.

Robert Hager, co-counsel with Mausert, said the court’s ruling could affect thousands of loans in Nevada assigned by MERS that are now in foreclosure.

At one point during Wednesday’s arguments, Justice Mark Gibbons asked Schuler-Hintz whether any proof was offered during the foreclosure mediation that the person from MERS who assigned the mortgage to U.S. Bank was authorized to do so.

Schuler-Hintz said that issue was beyond the scope of mediation, bringing a testy response from Gibbons.

“I can tell you I wrote the rules. … I know what they say,” Gibbons said. “You’re supposed to produce these documents and prove ownership here. You can’t just blow off (that) certification means nothing. It means a lot. It means that these people who sign these documents have a right to sign them (and are not) fictional people forging names.”

 

45 Responses

  1. MERS has no right as a beneficiary or nomoniee to assign anything that is like saying as beneficiary I want my life insurance proceeds now.

  2. @johngault

    I will email you the case.

  3. @dee – haven’t been there to read it, but I will today (if i can get there without security warnings!) I like him (DE). He’s on it.

  4. @johngault

    Where you able to open Dan Edstrom link? If so did you review the Judge decision to denied the defandants Motion to Dismiss. His opinion with respect to Mers is excellent.

  5. @trespass unwanted: will you please re-post your link to that unjust enrichment case? thanks

  6. Maybe I don’t get it, but in perusing documents this came up, from the FBI: Why aren’t these guys checking this stuff?

    Financial Crimes Report to the Public 2005

    Corporate Fraud investigations involve the following activities:

    (1) Falsification of financial information, including false accounting entries, bogus trades designed to inflate profit or hide losses, and false transactions designed to evade regulatory oversight;

    (2) Self-dealing by corporate insiders, including:

    (a) Insider Trading;
    (b) Kickbacks;
    (c) Misuse of corporate property for personal gain; and,
    (d) Individual tax violations related to self-dealing;

    MORTGAGE FRAUD INDICATORS

    Inflated Appraisals
    • Exclusive use of one appraiser

    Increased Commissions/Bonuses – Brokers and Appraisers
    • Bonuses paid (outside or at settlement) for fee-based services
    • Higher than customary fees

    Falsifications on Loan Applications
    • Buyers told/explained how to falsify the mortgage application
    • Requested to sign blank application

    Fake Supporting Loan Documentation
    • Requested to sign blank employee or bank forms
    • Requested to sign other types of blank forms

    Purchase Loans Disguised as Refinance
    • Purchase loans that are disguised as refinances
    requires less documentation/lender scrutiny

    Investors-Short Term Investments with Guaranteed Re-Purchase
    • Investors used to flip property prices for fixed percentage
    • Multiple “Holding Companies” utilized to increase
    property values

  7. @david – interesting point. Please keep searching for that info re corporate officer.

  8. @chris – no, sorry wasn’t me – re: New Century

  9. jve – I have it somewhere. I’ll send when I find it. In re Nosek (MA) is good as to sanctions, as is in re Walker (CA).

  10. […] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND Livinglies’s Weblog […]

  11. The A-Man

    How have you been?

  12. a search on HREF will show you how to make a tag to a website.

  13. Oh well, I tried three times to show what the tag looks like. It appears to work well pointing to Neil’s site when dealing with foreclosure.
    it has an foreclosure

    This is my last time trying to show what it looks like.
    Apologies for the multiple posts. No preview available.

  14. foreclosure

  15. foreclosure
    This blog modified my tag so I added spaces within it. Hopefully you can see it now.

  16. I actually have an “tag” in my web browser bookmark that is read by search engines. Whenever I come to Neil’s site, the word “foreclosure” is associated with my connection.

    foreclosure

    I believe several million people have visited this site and don’t post and refer to it periodically just like I have found other sites and refer to them periodically but don’t post on them.
    It has to do with the cookies too. If someone cleans up their cookies often they may appear to be unique to the site, if they don’t they are probably not counted on their next visit because a cookie is already there to show they’ve been here before.

    There’s many ways of gauging the number of visitors and unique visits, but I believe many million have found him. That’s good for advertisers and those who claim to represent their ‘citizens’ to know.

  17. @zurenarrh
    That link I had posted there is a scribd (13 pages of a Motion to Dismiss – by a Homeowner to a case brought on by Bank of America)

    Plaintiffs are relying on the theories of Unjust Enrichment and the One Satisfaction Rule. One cardinal principle of law states that, in the absence of punitive damages, a plaintiff can recover no more than the loss actually suffered.

    That’s going to be interesting to follow.
    It’s known Bank of America got insurance, and bail out.

    This was a great path to pursue, in my opinion.
    When you see that the entire deck of cards aren’t even standing on each other, you realize all this claim of a loss by the banks is an illusion.

    I’m sure unjust enrichment has been tried before, but lets see how it plays out with this case that got the focus of ‘The Ticker Guy’.

  18. @Iwantmypvn,

    Good summary.

    Now, think that the money actually comes from us (Ben Bernanke). It is ours. Our Federal reserve decides to lend that money to the banks at something like 0.01% interest but it never reaches the homeowner (us) until it has gone through 15 hands, jacking up the interest rate to 6.5% (average fixed loan interest in 2006-2007, when things started to blow up. I had a fixed rate… Excellent credit, very good income. It’s all gone down the tube).

    @A-Man,

    I thought about it too but… the 6.1 million visitor are mostly comprised of regulars who check the site an average of 6 to 10 times/day… As to bringing people to the site… You HAVE to be in the middle of foreclosure or on the brink of losing the house to want to read this site. It’s like you HAVE to be really, really sick to agree to be admitted to a hospital. And I don’t know about you but I’m the kind to introduce myself as :”Hi, I’m Enraged, from Ohio, and I am on the brink of foreclosure.” But every time, I can tell people are very uncomfortable with it. Unless the sheriff is at their door, they won’t talk about it. For Pete’s sake, in their mind, it carries the same stigma as having syphillis!!!

    Those things are not pleasurable in themselves, you see. So, people won’t flock to them voluntarily… But it is true that, on the face of it, 6.1 million looks good…

  19. @ colleen

    If you speak with Abby can you put us together?

    newenglandblonde@yahoo.com

    Thanks in advance.

  20. NEW DISCLOSURE – MANDATORY IN EVERY STATE:

    ” Your loan has already been sold to a securitization trust” “By signing the Note below you are creating money (debt) into the system”.

    Despite us telling you that we are acting as an independent financial institution, we are truly acting in an agency capacity for the “Sponsor” whom has already provided a fictional warehouse line to fund this loan through a subsidiary”

    So, despite us not taking any risk, and the fact that no secondary market truly exists between dealers, we are going to be paid a ludicrous fee that we are not required to disclose to you”. If that was not bad enough, it has already been arranged to register your loan with MERS, and the Seller Bank will allege it is transferred to these guys, who will allege to sell your loan too, will repackage it with a bunch of other loans, and they will make huge mark-up”

    They will than resell your loan as the Originator, who sells to a sponsor for more money, who sells to a special purpose entity whose only job is to convey to a trustee, making still more money.

    ” In summary, you are paying significantly more for this credit because of the very structure itself, which allows all the distributors inside the assignment conduit to make obscene amounts of money”.

    You do save a couple bucks because technology allows us not to record the assignments with each representative clerk. Not a problem, because we never assign the mortgages into the REMIC anyway.

    In a last final note, please set aside reserves when you buy the house – the people must account for their finances and mark into the aisle under old FASB rules.

  21. Group Responds To Foreclosure Scam Allegations

    Prudent Constituents Association Says They Are Renting Foreclosed Homes Within Rules

    SAN DIEGO — Foreclosed homes in the South Bay are the subject of a dispute between real estate agents who want to sell them and a nonprofit group that has taken the titles and are renting them out.

    “All these homes where people are being evicted by the lenders are wrongful evictions,” said Dianne Brown, who also goes by the name Harmony.

    Using quick-claim deeds and other processes she won’t name, PCA takes over a foreclosed home and rents it out.

    “The money from the rent goes to pay for taxes and litigation,” Dexter Brown said.

    The lawsuits, according to the Browns, seek retribution against the lenders.

    “When the case gets settled that’s when PCA will split the award with the owners. If we can’t find the former owners, then the money will go into a trust with the state,” Dianne Brown said.

    Some realtors 10News spoke to have called it a scam.

    The Browns, however, insist they are working for the public good.

    “All you have to do is research your rights. That’s what I’ve done and that’s what I am doing and that’s how we’re helping the people we are,” Dianne Brown said.

    Group Responds To Foreclosure Scam Allegations Video

    http://www.10news.com/video/30155205/index.html

  22. Trespass–thanks for that Lovejoy cite. Might come in handy! @johngault–“self-assignments” is a great term because it’s not only completely accurate, it’s very simple.

    I too have struggled with an analogy for MERS. I have wracked my brain and come up with a couple goofy things, but nothing that really illuminates what MERS is doing.

  23. Neil Garfield with 6.1million visitors this blog should have some political clout. It is should be a good voters block. Actually if 1 of us brought int 1 or two new homeowners we could be a big voters block.

    Judges and Presidents need to get reelected or avoid getting impeached or recalled.

    NEVER AGAIN

  24. EVEN THE STONERS GET IT. VOTE OBAMA OUT.

    http://www.huffingtonpost.com/2012/01/06/pot-activists-threaten-obama-2012_n_1190301.html

    NEVER AGAIN

  25. My robosigner denied she was an officer of MERS in a deposition last year. She admits to having signing authority granted by Resolution signed by Secretary Hultmann around year 2000. A review of the resolution exhibits language that appoints several employees of a southern California foreclosure mill at the same time. The word “officer” is not used.

    If MERS can make assignments of beneficial interest or deed of trust, some say it has to be executed by an officer. Some say the position of officer is required, but I can find no California authorities in support.

  26. We already have the legality on our side. Now we need the Politicians to get the message.
    A VOTE FOR OBAMA IS A VOTE FOR THE BANKSTERS
    NEVER AGAIN

  27. A vote for Obama is a vote for the Banksters. Vote OBAMA OUT. We need to send a message.

    NEVER AGAIN

  28. Market ticker website – Karl Denninger had some interesting comments.

    market-ticker.org/akcs-www?post=200232

    Sweet!
    2012 is an interesting year. The cases get better and better.

    “When the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages.” Lovejoy v. Murray, 70 U.S.(3 Wall.) 1, 17, 18 L.Ed. 129 (1865).

    If banks collected any insurance, or bailout to satisfy their claim of a loss, then what are they doing recovering again for the same damages in these fraud foreclosures?

    Interesting indeed.

    Trespass Unwanted, corporeal, life, free, in jure proprio, jure divino

  29. @colleen

    I believe in your last post you mentioned that you had some contacts here in Texas?

  30. chris,
    I think the # one blogger to ask would be Abby from ca. She’s actually gone to Deleware where the BK has been ensuing and fought for her fradulent loan. I’ve read her claims and probably the BEST I’ve read.
    I too, have New Century and home123, so she and I have written.
    They too are scum when it comes to the truth in the BK.
    it’s still ongoing since april-2-2007-It’s unbelievable

  31. @ johngault:

    Was it you who said you could share some information about New century in earlier posts? If so, please…I need all I can get! Thanks

  32. @johngault

    I would like to send you some information to review and get your thoughts.

  33. If there was fraud in the origination, why are we even talking about the after??? Sue your originating lender for fraud….

  34. What about an assignment made june 09 , Servicer as mers officer, as nominee for originator (that went bankrupt 07 and repudiated its contract with mers, a year prior to this assignment) to a GS trust, which filed 15d january 29, 08. A to D transfer, no proof of authority granted and alleged note missing proper endorsements.

    So how has Mers kept track of alleged transfers if it went from originator to trust, Fraud????

  35. to John Gault:

    Could you post the cite of “In re Lee,” presumably a BK Court case in California. Thanks. If you have the actual Decision, could you send it over to me, for which I thank you.

  36. But “MERS” is not executing assignments. They’re all
    self-assigments done in MERS name for a fee to MERS.I
    don’t believe KSH even believes the bull she is trying to
    sell here.

    Kristin Schuler-HIntz is an attorney with McCarthy & Holthus. They have offices in at least three states – NV, AZ, and CA and make their living representing claimants against homeowners. A principal of M & H is an officer if not owner of Quality Loan Services, an alleged substitute trustee. I have yet to see M & H disclose what
    sure looks like a conflict of interest to me when M & H
    is involved with a f/c action in which QLS is the alleged
    substitute trustee but M & H is representing someone
    else. I don’t they they disclose it when they represent QLS, either.
    I wouldn’t and don’t believe anything KSH said or says.

    In a case with which I’m familiar, she signed her name to
    a pleading wherein she alleged a servicing company was 1)
    the “payee” of a note and 2) the deed of trust had been
    assigned to the servicer in 2006. She submitted a declaration to the court with an electronic signature of her client’s employee stating the same falsehoods.
    It was shown that the servicer was and is not the “payee”
    of the note and the deed of trust was not “assigned” to
    the servicer until August of 2009, over a year after the
    claim was made and over three years after the sworn
    alleged date of assignment. It was executed by one Theodore Schultz, an employee of the servicer ( another instance of the self-assignments which are being done on every “MERS” deed of trust) to the servicer, his employer. (The Koontz court (Indiana) called these self-assignments what they are: “bogus” in ruling for the
    homeowner)

    A principal of M & H was sanctioned 25k in In re Lee (CA) for not telling the court his client did not own the note. That apparently hasn’t slowed them down. I have looked at many of their cases and from that review, it appears to me M & H routinely does not comply with the corporate ownerships disclosures nor certificates of
    interested parties. It must be swell to be above the law.

    My point is what good is a certification from liars, any liars? At the moment, these law firms don’t appear to want to make these certifications, as we’ve seen recently in NY. What if out of desperation to get what they want, they change their minds, especially if they’re up against a pro se who doesn’t have the wherewithall to challenge the certification? Will certifications become or are certifications the accepted legal standard of “evidence” and then we can spend another two years fighting against them? Will a court take notice of prior ‘bad acts’ by a
    certifier, and say ‘nope, sorry, you’re not credible’? If
    so, we should be racking up every falsehood we can find.

    I guess requiring the certification is at least an effort in the right direction.

    After admitting the assignment hadn’t been done at all,
    KSH told the plaintiff that when ‘they’ filed the claim, it was so done in good faith, but then, upon learning she could outdo the plaintiff, she apparently decided because she could, she would. This tells me that attorneys suffering from an attack of conscience can get over it in a NY minute.
    This may be an important case, albeit in the context of
    Nevada’s statutory mediation. Looks like this Gibson guy
    won’t be easy to push around. Yahoo for that, truly.

    It’s about time courts squarely confront the bs dynamic
    of MERS’ operation: MERS has alleged over and over and
    over that it is the agent of its members (which it isn’t). However, if it were, then the principal, the member, is acting as the agent (or straw-officer) of its agent in these assignments, which is illegitimate, and that is a very generous word for it.
    The real question may be “Is the appointment by Mr. Hultman of these straw-officers for MERS at its members (and by some accounts, appts of straw-officers at non-members, like foreclosure mills) legitimate? Does this appointment a corporate officer make?
    It’s insane imo and also imo, it all reeks of RICO. The
    sole purpose for these appointments is to allow those
    members to act in the alleged agent’s name because “MERS”
    per se doesn’t execute any of these documents / assignments. MERS gives the members carte blanche in exchange for fees. MERS disclaims the veracity of the information entered into its data-base on a strictly voluntary basis in the first place. I don’t think “MERS” is volunteering its own disclaimer to courts and
    homeowners, however. If MERS doesn’t even stand by the
    information allegedly showing in its database, why in the
    world should or would anyone else rely on it? As far as I
    can tell, “MERS” doesn’t even know when these assignments
    are done, unless they can tell by the fee they collected
    for the use of its name.
    Sooner or later, someone is going to come up with an analogy for this racket that courts understand.

    Even if a member has a right to enforce a note, this does
    not give them, or anyone, a right to assign a deed of
    trust to itself and definitely not under cover of what is
    a straw-entity itself. (If anyone is interested in the
    underlying reasons I call MERS a straw-entity, read on
    :

    The bull-sh$t-ness of these straw-appointments may not be the exact issue the NV SC is going to hear in this case. This issue, regarding MERS appointments of straw-officers to enable self-assignment, might not itself be argued. The argument is really, I
    guess, whether or not the certification is necessary to mediation. NV’s mediation statutes state, as I recall from Levya and Pasillas, that either the lender or an authorized person, one with authority to commit the lender, must attend the mediation or be available
    electronically. (No “we’ll get back to you after discussion with the party we claim is the real party in interest” or decisions at mediation made by actors)
    Mr. Gibson must believe evidence of that authority should
    appear in the record and M & H apparently does not agree.
    I’m just having a really difficult time with what a court will accept as “evidence” by way of a certification, especially when it is coming from liars.

  37. Thank You Mark and Robert for your great work! Keep up the fight!

  38. @iwantmynpv

    “That will be next, they will start disseminating fabricated PSA’s and Supplemental Prospectus’ and say that the original filed with the SEC was lost. They will use a Lost Prospectus Affidavit and insist the Court move forward.”

    LOL If they try this in the investor lawsuits it could be very entertaining and informative. Maybe we are already there. Maybe homeowners should send copies of what is handed them in discovery regarding this to the investors.

  39. It’s pretty simple, just bring the Prospectus and PSA to Court and ask US Bank Counsel where it states Ownit Mortgage Solutions can sell, convey, transfer, assign or do anything with US Bank. Moreover, where does it claim they can do it years after the cut-off date.

    That will be next, they will start disseminating fabricated PSA’s and Supplemental Prospectus’ and say that the original filed with the SEC was lost. They will use a Lost Prospectus Affidavit and insist the Court move forward.

  40. MERS, per its own rules, does not own anything. They are a nominee. Also, the transfers [all of them] must be recorded per state law. No recordation means the chain of title is broken. MERS is part of the problem; not part of the solution.

  41. […] Read More: Nevada Supreme Court Will Hear Question on Lack of Certification of Ownership of Loans […]

  42. no one gave anyone the right with out telling the home owner I have a 6year old satisfaction of mortgage that was a Wells Fargo origination. the mortgages broker and mers is on. it? the notary sandbank officer are both robosigners. so my house may not actually be paid off. so if the satisfaction s are robosigners so are the. foreclosure Socrates

  43. Do not do properly, Sorry!

  44. I disagree politely with that court!

    MERS is not governed by state laws. It is a paid membership only club, if you will. The rules to belong to MERS do not encompass jurisdictional and real estate law in states and they circumvent taxation/state revenue in this process. It is essentially a good old boys club made up of rules that govern it’s members, for a fee. They do not hold the note and deed, nor do they have “legal” authority to do anything, except keep track of transfers and hold on CD, the appropriate documents. Which I do believe they do properly, under the law. My $.02

    If this is the courts opinion, they need to be challenged.

  45. “Courts across the country have repeatedly found MERS is in fact an appropriate entity to execute an assignment because that right is given to them in the deed of trust and agreed to by the borrower at the time the loan is originated,” said Kristin Schuler-Hintz, a lawyer for the bank.

    Liar. Per Barry Ritholtz (The Big Picture), who keeps track of these decisions. 3:2 AGAINST MERS.

    http://www.ritholtz.com/blog/2011/12/clouded-title-the-gross-illegality-of-mers/

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