Oregon AG Files Amicus Brief on MERS: Will it Matter?


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Editor’s Comment: 

There seems to be virtually universal agreement that MERS was a bad thing — but still a good idea for the banks that profited from the fake securitzation scheme that hid behind the MERS curtain. The same agreement may be found with respect to fabricated, forged, Robo-signed documents in the chain of title. But I wonder if we are not being led down a rabbit hole. Saying they were bad is very different from giving homeowners actual relief. Homeowners are going to start winning cases only when they focus on what very judge knows — there are only two ways to discharge a legitimate debt — PAYMENT AND WAIVER. if you can attack the legitimacy of the debt, so much the better.


Millions of foreclosures have been finalised. There are two possible conclusions that Courts and Legislatures can reach regarding these foreclosures — (1) the loans were valid obligations that went unpaid and (2) the loans were not valid obligations (and perhaps they WERE paid).


If we assume that the obligations were both valid and unpaid at the time of the foreclosure, it seems obvious to me that the Courts and Legislatures are going to carve out some doctrine or exception that lets the wrongful Foreclosures stand and allows the future ones to proceed. And all the bad, defective and fraudulent paperwork in the world will be no impediment to creditors being paid money or property that would otherwise be lost. At most, perpetrators of such paperwork fraud will be subject to fine and forfeiture but the true creditors are not going to be deprived of repayment on the basis of the “mistakes” of intermediaries and agents in the paperwork.


If we assume the obligations were neither valid nor unpaid at the time of foreclosure then we have something else entirely. The wrongful foreclosures MUST be reversed and future foreclosures MUST be stopped — but only if there is no debt and therefore no default at the time of foreclosure. The faulty, fraudulent, forged, fabricated paperwork becomes part of a total case in which the debtor’s denial of the debt and denial of the default. But the reason the borrower wins is because there was no debt and there was no default. Lawyers for the homeowners are frequently making the mistake of relying upon legal argument rather than bookkeeping and accounting to show that the foreclosure is wrongful.


A wrongful foreclosure then should be defined not just as one in which the documentation was done poorly but because the homeowner didn’t owe the money and/or was not in default. This is easier than you might think, but it is intimidating to lawyers and borrowers. After all they know as well as anyone that they received a loan and they know they stopped making scheduled payments. How can they deny the debt? How can they deny the default?


The legal answer is that a person is ot a debtor and is not a borrower on a debt that isn’t due. And a debtor or borrower is not in default on a scheduled payment that is already paid or is not due. So how do you get the Judge’s attention on these issues?


The simple answer to those questions is the same answer to how can the banks lie like that and get away with it in Court or in the media? Because they can and there are no consequences to them for lying — unless the homeowner borrower has the staying power to get to the end of the case or at least into discovery where the judge enters an order demanding a full accounting starting with the creditor (not the servicer) all the way through the entire securitization chain through at least a dozen parties including (but not limited to) the borrower.


If the banks get stuck with a fine or sanctions, even if it is in the millions of dollars, it is only in one case. A handful of wrongful foreclosures easily pays for that.


The borrower too can make such allegations and deny the allegations of the other side with impunity until it is shown that the allegations were frivolous in which case the borrower will be hit with the same sanctions that have been paid by Wells, US Bank, BOA, Chase, Citi etc. The point is that if you deny the debt and the default with a straight face (same as the banks lie through their lawyers), the judge has no choice but to let the case go forward. Show the same temerity as the banks and the tables will turn.


So how can you deny the debt and the default with a straight face? It’s easy. Bring a third party report that can stand up under cross examination. The report should say that the transaction referred to in the note and mortgage never occurred and that the real creditor was being paid, without documentation, at the same time the pretender lenders were declaring a default.


You don’t try to get the judge to accept the report as true. Your point is that your side of the facts is entitled to the same repsect as the pretender side until it comes time to show real evidence. Thus you have denied the debt and denied the default. The answer to the obvious questions are that you never borrowed the money from the party shown as lender on the origination documents, you never borrowed money from the new party seeking to foreclose and there never was a transaction at any time in which a loan was purchased for actual money exchanging hands.


These are factual matters and you will prove them in most cases with the help of the Combo title and securitization report, the loan level accounting and the forensic analysis. If the “lender” was a straw-man you have a right to pursue the basis or authority for an assignment, allonge, endorsement, substitution of trustee and most of all a “credit bid” at auction. Our experience shows that every time a judge enters an order requiring the other side to fess up and show cash transactions and the whole money trail, they collapse.


The singular fact that few people have noted is that none of these cases go to trial. If the pretender banks and pretender servicers actually had the evidence to prove their case you would think they would be chomping at the bit to prove their case. Doing so would downgrade all the wrongful foreclosure complaints to mere technical arguments designed to get a dead beat debtor out a legitimate debt. But they can’t.


They claimed ownership when it came to receiving insurance proceeds, and the rewards of bailouts and credit default swaps. They claim agency when it comes to sanctions and counterclaims for predatory lending, appraisal fraud, and identity theft. So when it comes to receiving money, they claim to be the “principal” but when it comes to liability they claim to be only the “agent”. The debts — including those that might never go into “default” have been paid in full, renegotiated, settled to the satisfaction of the creditors. Or the creditors have elected to pursue payment from the investment bankers instead of the homeowners.


Either way, the debt is non-existent, paid, settled, or waived which means there is no legitimate basis for collection or foreclosure against the homeowner borrower. But if you allege that there is no right to foreclose because of bad paperwork, nobody is going to listen. Why should they?

MERS | Orgegon DOJ Attorney General John Kroger files an amicus brief in an Oregon foreclosure lawsuit pending before the 9th U.S. Circuit Court of Appeals

Amicus Curae-Oregon AG



19 Responses

  1. @dcbreidenbach and anyone else.

    Sorry if My Links might not work properly. so, Just to Break it down.
    I am Documenting a Film about the unlawful/fraudulent Foreclosure Process, I am working with Attorneys In texas, and Forenic Auditors, Ex Banker and Such.. The Material is quite Overwhelming with Fraudulent Activity by the banks. I read Neils blog everyday and love the Articles on the Subjects.

    My email is Michaelavmen@yahoo.com I can Give anyone my contact phone number through email to talk of you want to share your story. I have had several people contact me already.

    the kickstarter page is just that, a kickstarter to continue with the film. Its a good way for a community of people who want to see the project happen help in finance with some added perks in return( per the rules on kickstarter it cannot be Financial perks). the funds will go towards mostly travel to conduct interviews and post production, and publicity for distribution.

    i think this film will be a great addition in helping borrowers educate the people in influential positions. in all reality if funded by lets say May or July an October release of the film is possible. Although Many borrowers transit this site, i dont want your money for the film unless you feel the need to help even in the smallest way, i feel that advocacy groups, lawfirms , or just investors with losses due to the securitization mess, can help fund the film…

    I have already Funded well over 20k dollars in Gear for the film and have landed the attention of major Hollywood Agents interested in seeing the film move fwd, but I dont want to give up my creative process and so i am making an effort to fund it myself…

    The Kickstarter page is not Live yet, I will Launch it on Monday the 9th and then i will only have about 45 days to get it all funded, if i dont reach the goal, no one gets billed, and we so tart all over again, or we could fund relatively quickly with the help of sites like this and others who pass on the message. I believe it will get funded once launched.

    for anyone else reading this I too have faced the Banks in Wrongful Foreclosure, but the film is not about me, its about all the knowledge i posses in learning to fight and i want to share it with everyone in the US. I just Happen to know how to Make Films…..

    Thanks …

    Michael AvMen

    ps I will post the Active Link to Kickstater Soon…a Film Website will also Launch mid April..

  2. Three things wrong here. 1) there is no particular explanation of the author’s knowledge of the topc beyond a few key words; 2) the email contact on his forward to site does not work–maybe if you want to sign up for FaCEBOOK and throw some more money to the brat you might be able to get through with comments and questions and 3) rather than asking or overviewing his material the page is wired to receive $$$$———-it smells bad

    its a good idea but the deliver day happens to be well after election–days late and not consequential—anybody with half a brain knows that the delivery date must be pre-election or its old news and not likely to get press–is it just a con–?

  3. Dear guest,
    Select the link under the article. Then select the second link for Amicus Curae on the page that opens up. If it still doesn’t open for you, please email me at NeilFGarfield@hotmail.com and I’ll email you a copy.

  4. And I wantmynpv,

    You’re too cute. “Hong Kong billionaires arrested, suggest real estate fraud”. Suggest? I read your quip and i started laughing so hard, I nearly fell off my chair. “Suggest”. Good one! Got anymore where that one came from?

  5. @Iwantmynpv,

    Glad someone else is taking those resignations and arrests seriously. Thing is… when are we going to start taking care of our own? I have a few names I could throw in, for starters. You know, for good measure…

    @E. Toile,

    Working on your guillotine yet? If you need a hand, give me a holler.

  6. @ guest

    I would be very careful about “quit claiming a deed” or any interest…not a lawyer , but have considered the same…check the law and make sure you are not doing anything that can get you in a heap of problems. If it were that easy…just saying?

    Having consulted counsel, I am looking at putting a lien on my own property, can be done.

  7. London – P Morgan Chase Bnaker resigns over fraud, Hong Kong billionaires arrested, suggest real estate fraud.

  8. http://www.kickstarter.com/projects/1698916510/33261707?token=2f2b4003


    These Are some Trailer to my Film… The Kickstater Page is not Active yet but will be soon…. Please pass this Along to Attorney’s and Anyone Wanting to Contribute to the Film… I believe AMERICANS NEED TO KNOW WHATS IS GOING ON AND A MOVIE IS A GREAT WAY TO DO IT< we all WIN, Even Judges like going to the Movies… Lets Educate them on the FRAUD invading our Homes….

    Thanks So Much

    Michael AvMEn (Fighting for My Home As well)

  9. ok

  10. johngault 4/2/2012 at 10:12 am. The answer to your question is simple. Call your friend and ask him to give you the regulation and case law to support his information. I would like to know where he obtained this information.When you recceive it, please contact.

  11. yes

  12. @ hman- Just quit-claim and record your interest to your spouse, child, etc. and cover it with a title policy…

  13. So, where is the brief linked on this page?? or anywhere??

  14. “If the “lender” was a straw-man you have a right to pursue the basis or authority for an assignment, allonge, endorsement….”

    I get and appreciate the drift here. I’ve never known why anyone starts out a complaint with an admission he got a loan for x amt on y date from ABC, etc. But you can’t just say the lender was a straw man imo. You have to include the so what of that, I would think. There has to be some nexus articulated between the act and a violation of SOMEthing, even if you save it for oral argument as a part of your strategy. “What’s wrong with having a straw man as the payee?” seems to me a question which has to be addressed by anyone making the straw man argument.

    We have to make arguments that will “help” a court see that it cannot make a determination without facts. The first thing to do is recognize for ourselves the facts the court needs and then determine just what is truly evidence (this of course takes more work) of those facts (and on that note, I think we should all start compiling a list here). How can a court, for instance, find legitimacy in a “MERS” assignment when there is no evidence the party it purports to act for is even a MERS’ member? A court just can’t. That’s all there is to it. And on what basis, whose order, is the assgt being done? MERS itself disclaims the veracity of the info in its database and says it’s not to be relied on (posted at scribd), which is hopefully judicially noticeable. What about intervening assignments (unrecorded). Were there any?

    I like Mr. G’s ideas. I just wanted to add my 2 cents about the
    “so what” necessity.
    If you really want to go the distance and I’m not advocating fraud of course, on info and belief, they can’t get the note in if you say it’s not your autograph thereon or maybe it doesn’t appear to be. This should lead to an evidentiary hearing (they’ll try to depose you first, I think)and then you better have a plan! Also, fre 1002 may be useful in demanding production of the original note:


    I hope people who need to know about this will take the time to read it.
    The big trip with fre 1002 is to paint a picture that there is a dispute about the contents of the note, and that to me, anyway, includes the (alleged) endorsements. And it’s certainly helpful to have case law when we can (save the case law for oral argument for the surprise factor?)

  15. I have a question about MERs DOTs.

    What happens if you contact the title company on record. Title company claims we are no longer the trustee. You offer that they sign a quit claim. Why? Because they are the trustee on record. There’s a conflict on MERs system vrs public record and you are trying to “correct” your title.

    If you could get the title company to sign a quit claim (and I’m not even sure that anyone at the title office would even have the authority) would the debt be unsecured? Ever NOD I got says that there has been a breach of contract with the “original” trustee. Next they process a substitute trustee through MERs. It goes from the original trustee to MERS.

    My thoughts are if you could get them to sign a quit claim you could easily defend against a substitute trustee. The servicer would have to file some type of Deed of correction and it may raise red flags.

    Just my thoughts but wondering if anyones attempted or heard of anyone doing this? Would MERs just maintain that the DOT on record is moot because the DOT follows the note…and the notes been transfered correctly. Mine even has a pretty alonge. Funny thing the first servicer I had never had an alonge and the note was never endorsed to them so what authority did they have to collect payments? Why wasn’t there an allonge with my first servicer. The allonge only appeared (undated of course) after I questioned the servicers authority.

  16. I called a friend yesterday whose ear is hard to get because he is a busy guy, but he reiterated briefly that in order to qualify for
    securitization, loans had to be “seasoned” for six months. What this means in practical terms is that the borrower had to have made payments for six months (theoretically the basis for assumption the payments would continue to be made) before the loan could be used as the asset for mbs’ certificates. Well, that didn’t work for the gang I now call the MERS Regime (thanks to an amicus in WA), so they fashioned their own illegal cure. The depositor or sponsor did one of two things, or both: escrowed six months payments or got default insurance, neither of which is a legitimate substitute for the seasoning requirement, read trust law as it’s explained to me. If this is true, if for no other reason, many of the loans allegedly in trusts can’t be in trusts as a matter of law: they weren’t seasoned.
    I’m wondering fwiw if this self-fashioned and illegal solution
    to avoid the seasoning requirement helped create the economic tsunami which was undeniably – right? – caused in part by the amount of insurance commitments held by AIG, for instance. What started as a plan to avoid the law in short order turned into a rote bet against the success of the loan repayments, as that gang realized they could score big-time in this way. What we need is 1) to know if this is true – the seasoning requirement and 2) if it’s true, and it would then be true as a matter of law, what legal arguments are available to us in regard to the party (trusts now that foreclosures aren’t being done in MERS’ name) trying to enforce the notes and dots?
    I’ve mentioned this before, but I am mentioning it again in hopes that someone can and will find out if this info which would be dispositive if true, is in fact true, and if so, they deserve the same amount of mercy they have shown us.

  17. No, the brief will not make a difference. I don’t see how the Oregon AG–one of the 49 sellouts in the robo-signing debacle–can even pretend to be standing up for consumers. This is obviously for show. That said, Oregon does have a pretty good Trust Deed Act. So maybe I’m completely wrong…

  18. I’ve said it before and will say it again; MERS is nothing but a storage shed. A good ole boys club, for members only. A CD is hardly “original note and deed” evidence, just copies.

    MERS has cheated every state and county of revenue, circumventing the filing system. This alone should make judges damned angry, as it is their townships that are getting screwed. Not to mention the value of their property is dumping just like ours!

  19. This argument failed in Minnesota where the laws are so favorable to lenders and creditors, they can basically sell your children into slavery and have your dogs put down if they just say you defaulted. Lori Swanson has the hardest job in the world protecting MN consumers. They’re are totally screwed!

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