Oregon Supreme Court: Only the Real Creditor Can Foreclose Non-Judicially

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Niday vs GMAC et al

“Plaintiff now  appeals, again arguing that the “Oregon legislature intended the ‘beneficiary’ to be the one for whose benefit the [deed of trust] is given, which is the party who lent the money,” rather than MERS. We agree and hold that the “beneficiary” of a trust deed under the Oregon Trust Deed Act is the person designated in that trust deed as the person to whom the underlying loan repayment obligation is owed. The trust deed in this case designates the lender, GreenPoint Mortgage Funding, Inc., as the party to whom the secured obligation is owed. And, because there is evidence that GreenPoint assigned its beneficial interest in the trust deed but did not record that assignment, the trial court erred
in granting summary judgment in favor of defendants.

Editor’s Note: This decision is even larger than it appears. First, for Oregon it knocks out all MERS foreclosures. How that will be handled retroactively is unknown. But if the foreclosure was wrongful and corrupted title it seems that the only option is to reverse ALL foreclosures that ahd MERS as the beneficiary and where they were the pretender lender acting as though they were creditor.

Second, is the issue of the credit bid which the court obviously was keenly aware of. At the auction everyone must bid cash except the party to whom the money is actually owed AND to whom the house was pledged. MERS fulfills neither of those definitions or descriptions.

Third, it directs the attention of everyone to the enormous title corruption throughout the country in which deeds on foreclosure were issued to entities who merely submitted an oral credit bid and to whom the deed was issued as though that party was in fact the true creditor. In those cases, the foreclosure sale is invalid.

The problem remains that the burden of proof is frequently laid at the doorstep of the borrower who has the least knowledge and the least access to knowledge. But the court takes care of that by saying, that if MERS is involved, then the party must foreclose using judicial process.

And now people who are getting wise to the system are asking a different question in their challenge to the pretender lender: “how did you get that loan.” That means they must show the transaction in which they received the loan in exchange for consideration — something that appears to be impossible unless the banks go so far as to fabricate electronic data transfers for payment processing.





63 Responses

  1. […] Oregon Supreme Court: Only the Real Creditor Can Foreclose Non-Judicially Posted on July 18, 2012 by Neil Garfield […]

  2. As I mentioned in a recent post, BOA is getting squirrely again and threatening foreclosure. I have sent out several QWR’s and got back an alleged “validation” a while back stating that BONY is the “investor”
    and sent an assignment between MERS and BONY as proof. The assignment was dated May 12, 2011 and signed by Edward Gallegos as assistant secretary of MERS (as assignor) out in CA. I read somewhere that Edward Gallegos is one of the new generation robosigners and all of this new document generation is taking place in a BOA controlled office in CA. Since this occurred a month after BOA and others signed a consent agreement with the OCC, and I am in the middle of the Independent Foreclosure Review process, wouldn’t all of this be a violation of the consent order where the banks agreed to refrain from signing documents that haven’t been reviewed and are actually signed by actual representatives of MERS (among other things)

  3. Yet corrupted California courts continue paying lip-service to MERS & any gangster who records bogus default notices against owners

  4. […] Read more… Posted in Banks, MERS, News Around The Country, OR, States « Local Governments Weigh Eminent Domain to Stop Foreclosures “A day of reckoning may soon be coming.” Yves Smith » You can leave a response, or trackback from your own site. […]

  5. Martha, please post a link to that MERS’ recitation. thanks

  6. […] Oregon Supreme Court: Only the Real Creditor Can Foreclose Non-Judicially(livinglies.wordpress.com) […]

    “The immediate impact of this decision is that MERS Members will now likely have to proceed judicially with foreclosures,”

    This will affect all states most likely, but the post says “OREGON SUPREME COURT” and it was not the supreme court, and they will appeal this like no other!

  8. That’s why I’m here. Great help from the long time posters two years ago (you know who you are) got me to this point and looking forward to working through it successfully this time.

  9. Not sure what to tell you, beauduke—the cards are stacked against you—with or without a lawyer…does anyone have advice?

  10. Since the relief asked for was to block the foreclosure, when they withdrew it, I dismissed the case without prejudice

  11. @bd

    Did anything come of it?

  12. basically for lack of standing to foreclose. Issues with the pooling and servicing agreement, robosigned docs, etc.

  13. @bd

    When you say you “sued them”—what did you sue them for?

  14. carrie, CO and no, can’t afford a lawyer

  15. @beauduke

    What state are you in? Are you working with a lawyer?

  16. carrie

    my thing is a little different. Started back in 2008 when my loan adjusted with Countrywide and I told them there was no way I was going to pay the new amount. Surprisingly they agreed to a mod. However, being who they were they started adding fees here and there and I told them if they didn’t go back to the original mod I would just stop paying. Which I did then the BOA take over and eventually BOA started foreclosure and then agreed to a trial mod of their own. After stringing me along for 6 months on a 3 month trial, I quit paying again and sued them. After about 8 months they withdrew the foreclosure and nothing for over a year except them sending monthly statements explaining that they are the servicer and me sending them QWR’s. Now this.

  17. @beau

    You could apply for a “loan mod”—they can’t legally foreclose (and you have to keep reminding them of that), if you are in the middle of negotiations for loan mod…then during that time research how to fight them.
    I’m not a lawyer—not legal advice.

  18. Well, here we go again. Just got a notice of intent to accelerate from my friends at BOA. After 4 QWR’s in the last year, they finally sent something saying an assignment was made from MERS to BONY as trustee the certificate holders for yada, yada, yada for the sum of $10.00 and other valuable consideration. Huh? I am also in the middle of an Independent Foreclosure Review per the consent order between BOA and the OCC that supposedly won’t be finished until September. Does BOA have to back off till the review is complete? The intent to accelerate says I have until Aug. 11 to pay up or else.

  19. researching the UCC – yawn. I made a comment recently that art.
    9 does not contemplate a holder in due course. That’s not true, so forgeddabout it!

  20. carie, those guys seem kind of dumb – like a fox, so it’s hard to tell, but if it’s not done with ignorance, then there is some intent we probably wouldn’t like if we knew what it is. frustrating, I can see.

  21. et – what they’re doing – you said it best.

  22. PS – I have seen NOD’s which state that the undersigned is the ben of the dot, and the undersigned is the subd trustee or its alleged agent or author unknown, actually – signed by who knows who “for subd trustee” without any authority expressed at all. That is either insane or something we don’t know a thing about (subd trustee is now ben?!), or the NOD is fatally defective. Btw, and I hate to put this out there, but i just read yesterday as a matter of fact that with certain, nay, I’m not gonna!

  23. well, that is kind of curious, carie. Don’t quite know what to make of that.
    There’s no prohibition on making an assignment to the trust (in fact, isn’t that what the psa’s call for – when some eejits didn’t call for ones in blank or alternatively, that I heard of – , so why is it being assigned to the trustee? What is the ramification of that? I admit – I’m confused! Is there something we or at least carie and I don’t understand at play here, something legitimate? Anyone?
    There’s no doubt I would like to see MERS’ dbl dealing etc exposed, safe to say. What is bothering me, why I post stories MERS told in numerous litigations, is that the judiciary starts, often, at the homeowner is a deadbeat, it’s said. Well, I’d rather be called a deadbeat than a liar. A court’s perception of the players before it needs to change. imo.

    MERS told the Nebraska court it had NO interest in loans to get out of licensing. Imo, this is no slight matter. To now see all these cases where MERS swore otherwise is infuriating (et could say this sooo much better), and it’s wrong. I wish I knew so many things I don’t know – starting with how to use the NB case against them in those many instances where “MERS” has alleged facts in direct contravention of that which was told in Nebraska, if not elsewhere. My fondest desire is that it might at least contribute to the reclamation of homes already snarfed, maybe on the basis of estoppel or maybe even newly discovered evidence or something like that. I am not the one to do it, to lead any charge. I’m a lay person. But I will continue my efforts to expose what I can and pray that it finds the right audience.

  24. Also, tn—
    the Assignment Of Deed Of Trust says that MERS—“as assignor”, “grants, sells, conveys, transfers” to—you guessed it—Deutsche Bank National Trust Co, as Trustee of (the MBS)…”all beneficial interest”…

    What do you make of that?

    I mean—both docs are saying that a trustee of the MBS is the beneficiary—right?

    Yet—as you say—“basic trust law says you can’t be trustee and beneficiary ”…

  25. Thanks, tnharry…I know it doesn’t matter at this point—but I like to get to the truth of things…you said:

    “basic trust law says you can’t be trustee and beneficiary ”

    Okay—my Sub Of Trustee says:

    “…the undersigned is the present beneficiary under said Deed Of Trust…”

    And guess who the “undersigned” is? Yup:

    “Deutsche Bank National Trust Co, as Trustee of the (MBS)…”

    What do you think?

  26. @ JG, you might find this Q&A from MERS’ website enlightening. I know I did, as I saved it long ago and you reminded me of it just now with your questions. What’s really striking when one stands back and analyses the MERS dogma and their various rules and procedures is that they’re really just making this shit up, and yet they’re foisting it on county recorders, courtrooms, and hapless borrowers across the country, WITH ABSOLUTLEY NO VOTES TAKEN….WITH NO AGREEMENTS….NO STUDIES….NO NOTHING!!!



    What happens if you have a non-Mers member who uses a MERS mortgage, but puts MY COMPANY’S MIN number on the docs? The loan is then sold to my company and it’s registered on Mers. Do I need to correct this? If so, how? Do I need to do an assignment to MERS, or is there another way? Thanks!

    Answer from MERS admin:

    As long as the MIN on the recorded security instrument matches the MIN used to register that loan on the MERS System, nothing needs to be corrected. This is a very common scenario where MERS members give a MIN that they generated to one of their brokers who is a non member to put on the security instrument at closing.


    The lender has their name on the mom mtge, indicating that mers is a nominee for the non mers member. I was told by mers customer service that because the lender is not stating a true fact that they are the nominee for them, we need an assignment from the lender to mers as nominee for my company. Is this true, do we need an assignment or not?

    Answer from MERS admin:

    In your example, since MERS was the original mortgagee, an assignment from the originator to your organization would not correct this situation and is in fact invalid since only the current mortgagee (MERS) can legally assign the mortgage to another company.
    MERS procedures require that you enter into a Third Party Originator (TPO) Agreement when you issue MINs to non member originators for use on MOM (MERS as Original Mortgagee) security instruments which name the originator as the lender. If you have not entered into a TPO Agreement with MERS, please contact the MERS Law Department for instructions on how to complete one.

    ET: They’ve convinced me that drones can indeed serve a useful social purpose. The sooner the better.

  27. http://www.scribd.com/doc/100562011/TRANSCRIPT-MERS-Tells-Court-it-is-the-NoteHolder

    The court: ” You are simply, whether it calls you beneficiary or agent
    or nominee; nominee is something that we take cognizance of, but you hold no beneficial interest in the note, other than legal title. Isn’t that the truth?”

    MERS / Mr. Devyver: “Well, I would….I would disagree with you there.”

    The court: “You said we are a holder, we hold the note in blank, but
    we also admit that the owner — beneficial ownership of the note is
    in someone else….That’s an IRRECONCILABLE CONFLICT” **

    p. 12:16-19
    The court: “So in Ziegler, MERS has the right to payments from — from
    your perspective on that particular Ziegler note?

    MERS / Mr. Devyver: ” Yes, sir.”

    ** From what I gather, the court is saying tho one has possession of a bearer note, if the ben interest is in someone else, the party in possession is not a holder under the law, which imo means there is no right whatsoever to an assgt of the coll instrument to that party in
    mere possession of someone else’s note.

    Earlier, the court had asked MERS “How do you claim?”, which I take to mean are you a holder, are you a hidc, are you claiming under agency, under poa, under what exactly? That is a question we must ask because the answer, if proved, is dispositive of the claimant’s rights or lack thereof.

  28. I just got my order from Judge Hogan of Eugene OR District Court today. The readers digest version is: they don’t care what happened, you owe someone money and whoever the paperwork was transferred to last can foreclose….period. Ours was last transferred to US Bank before the sale, so they said they can foreclose, they don’t have to prove anything or record anything because they rescinded the non-judicial foreclosure and in the same paper filed the judicial foreclosure. That is how they will foreclose on people in Oregon now. Forget non-judicial where you have to prove things and go right to judicial where you can put it in whoever’s name you want and foreclose with no proof whatsoever. Not even a reprimand for the rescinded non-judicial foreclosure that was wrongful and they admitted that they would not have been able to get clear title that way. US Bank is the trustee for the Chevy Chase certificates, so evidently they can be the beneficiary because the judge says they are. It’s like we won every argument, but lost anyway. Very disheartening…..I wish you all luck and hope you do better than I did. =(

  29. It’s way past time imo for resolution of this question: if the owners of our loans are not MERS’ members, and I opine they’re not MERS’ members when the loans have been securitized and allegedly owned by the trusts (unless other options we’ve discussed are true, that is, the trust only owns the right to payment made) of what if any consequence is it that the sec’n trustee is a MERS’ member (if so and this is in fact iffy, to me ftr and fwiw)?
    Succinctly: The investors are not MERS’ members. Can we agree on this? Of what consequence, if any, is it if the secn Trustee is?

    Hultman told at least one court and it’s in the mem agreement, that an assgt must be executed WHEN THE BENEFICIAL INTEREST IN A NOTE IS TRANSFERRED TO A NON-MEMBER and it would have to be that way, anyway, since MERS can’t even intimate a relationship of any kind with non-members, notwithstanding the “successors and or assigns” in the dot.

  30. @carie

    “but tn—can the trustee of the MBS be the owner/ben? cause that’s what my paperwork alleges…” — no, basic trust law says you can’t be trustee and beneficiary at the same time. again though, without seeing the paperwork, i don’t know exactly what we’re talking about

    “HOW is the foreclosure sale of possible benefit the trust investors?
    …how do these “investors” (supposedly) get any money from the trustee’s sale? Do they? Because the servicer had told me they were conducting the foreclosure “on behalf of the securitization”” — i can’t answer that either, except to say that the proceeds are supposed to flow through the servicer to the holder. but, unless you’re facing a deficiency action from the sale, it’s neither relevant to a cause of action by you nor your fight.

  31. also tn—can you answer this question :

    HOW is the foreclosure sale of possible benefit the trust investors?
    …how do these “investors” (supposedly) get any money from the trustee’s sale? Do they? Because the servicer had told me they were conducting the foreclosure “on behalf of the securitization”…thx.

  32. but tn—can the trustee of the MBS be the owner/ben? cause that’s what my paperwork alleges…

  33. @carie – re: Deutsche as owner/ben, i have no idea how to posit my opinion on that without reviewing the documents. sorry

  34. @MakeItHappen – good points, one and all. The assgts are being executed by an employee of the assignee to his or her employer, generally the servicer. Their ostensible authority to do so is based on one document only: the alleged appt of that employee as a MERS’ officer by Wm Hultman. It IS a conflict of interest, to be certain, and it’s an illegitimate dynamic and we all know I have other words for it. Further, MERS has nothing to assign in the first place. It may only convey its nominal, supposed to be temporary placeholder dot status, if that. It has no real interest to convey, even if it were MERS executing the assgts, which it isn’t. A party with nothing to assign can’t delegate any authority to do the nothing. There is no assgt without interest to assign….by anyone wearing any hat.
    Those assgts had to be done from A to D. MERS simply allowed the recordation to be put off until it was more convenient. But they found themselves in a jam because the assgts weren’t done. They were not capable of regulating themselves and doing what must be done. Once again, the only time a MERS’ member is authorized by its membership agreement to execute an assgt is when the beneficial interest in the note has been transferred to a non-member. The agreement recites no authority to use MERS’ name for any other assignments, like member to member, nor does that agreement even authorize a member to use MERS’ name in the first place. And why is the alleged agent telling the principal what it may do in the alleged agent’s name in the first place? The truth is that the MERS deal does not make MERS an agent. If anyone is acting under anything at all, it is the member who is acting as MERS’ agent, though by Hultman’s messed up resolutions, they called it something else, like v.p. It’s all very tweaked. I hear the guys who worked on that had law degrees, but it’s hard to believe. And now MERS wants to hide behind supposed legal advice, as in ‘our hands are clean’. Please. Why does one suppose Arnold bailed?
    That’s not how legitimate agency works. According to certain transcripts, it appears Hultman doesn’t have the authority to make these straw-officer appts at all. It’s true a corp may ratify acts, but if these assgts are subject to the statute of frauds, I don’t think ratification cuts it if they were otherwise legitmate, which they’re not.
    In view of Oregon’s recent decision, and a reminder, Oregon is a lien-theory state, where the dot is treated as a lien and not a conveyance (think that’s safe to say, way I got it, even tho that is not what is expressed in the dot itself), if a transfer of the note may carry the security, I just don’t know how that works with bearer notes. “Normally” when no party is named as an assignee of a real property interest, say like the blank dot assgt I heard some psa’s called for, no assgt would have been effectuated because of the lack of identity of the assignee. (There is no such thing as a “bearer assgt” of a dot.) But in lien-theory states, of which I’m no authority, not a bit, maybe the coll can follow a blank endorsement on a note thru several parties. This bears scrutiny. Still, possession of a bearer note does not entitle the party in possession to the ben of the collateral when that possessor does not own the note, has paid nothing of value, is not a bona fide transferee. That party to the best of my belief, and still working on proving it, has an unsecured note and no right to an assgt of the collateral instrument.
    These assignments need to be attacked on all scores. They are gratuitous and transfer no interest. The alleged transferee is not the rpii, the assgt having been done for the sole purpose of collection (and I have previously – twice – linked a case discussing assgts for the purpose of litigation / collection). Disregarding the invalidity because of “MERS” involvement, if the assgts actually transfer real interest, say to a servicer, and value is paid, then clearly there are things we just don’t know. That is inescapable imo. Hope I am saying this clearly enough. And if a servicer were actually purchasing the note and its collateral for some reason, one we don’t know, the servicer, or any party, only has the right to collect on the note to the extent it has paid for the note. If agree to pay 200k, but not paid it yet, no right to collect. Going further, would that put a note in limbo as to collection by anyone? Probably. Going further, why then does a thief of a prom note have a right to enforce (an unsecured) note? I can get it why a thief might under bearer-provisions, but why is that so if one who has only promised payment but not made the payment not have the right to collect until the promised payment is made?
    Those reading quietly here who have some info relevant might give some thought to chipping in. “I’m just saying….”

  35. @jg—from your post: “…you’re not willing nor ABLE to reveal who the principals are. ”
    Reminds me of when my servicer told me:
    “We don’t have to tell you who the real creditor is because of ‘privacy laws'”…

  36. @tnharry—did you see my Deutsche question re. owner/ben? Thx.

  37. I’ve found that the masses, including the courts, presume “agents” in foreclosure actions are actually authorized agents even though their own evidence presented in court proves otherwise, especially for the servicer. For instance, in most of the Assignments of Deeds of Trust I reviewed, an Asst. Secretary for the alleged servicer or MERS executed it. There are several issues raised with this practice. First of all, the servicer is the alleged agent for the foreclosing “lender” (the Assignee), there is no evidence whatsoever that the servicer is authorized as a similtaneous agent for the Assignor. In fact, that appears to be a conflict of interest in and of itself. Secondly, there is no evidence of the alleged servicers’ authority attached to the Assignments of Deeds of Trust or recorded in public records showing authority to act on behalf of both the Assignor and the Assignee. In addition, in too many cases I’ve found that the alleged securitization trustee is foreclosing in its individual capacity, but the Limited Powers of Attorney given to the alleged servicers name Trust. Many courts and foreclosure defense attorneys act on the presumption that the securitization trustee and the Trust are one in the same when the evidence shows they’re not. In my case, the securitization trustee prosecuted the entire foreclosure then assigned the bid to the Trust after the foreclosure sale, which is clear evidence that the entities were not the same. The Trust was never mentioned in the foreclosure filed prior to the sale. And yes, the Trust entered a credit bid after it was assigned the bid and after it was supposedly closed in 2006. Go figure….

  38. @carie, I’ll try to weigh in better tomorrow, but really, an assgt and whether or not the assignee actually receives the benefit of the dough from f/c are related for sure, but just about apples and oranges all the same. As to how the investors receive any benefit from f/c, that’s been a question of mine for a long time: how does that work? Do they each get 28 cents? I’m telling you, in this climate of anything goes, I wouldn’t be surprised if 1) they get nothing or 2) the servicer continues payments on a f/c’d property and floats the dough from the f/c sale for its own benefit. And that doesn’t even consider any insurance from any source, a subject on my list for further scrutiny.
    Yeah. any day now. This stuff is stressful and many of us are already suffering from ptsd. I really believe that. I do NOT ftr compare it to the ptsd of say a soldier. I can only imagine that one. But, it’s no fun at all. This is a most oppressive and depressing set of circumstances for the American as well as many of our global neighbors. (In fact, worse for some of them by recent reports of pension / savings being snarfed.) That just can’t be denied. If you don’t mind, I hear your own angst daily and it kills me. You’re sure you’ve got the goods, but don’t know what to do with them, like many here and many not here. Staying tuned here for fear you’ll miss the one thing that might make a difference. Well, it could be worse. “Here” might not be here. Love it or hate it, it’s a group of people with common goals and a place of (free) expression.

    I’m working on something and a transcript showed up that I had forgotten about. Now this cracks me up. It’s in the “Mitchell” DC case from 2009, wherein the DC upheld the bk court: no, MERS is not the rpii for stay relief. Here’s what Judge Jones said, talking to pro hac vice attorney K. Isaac Devyer of Reed Smith in Pittsburg, Pa (who it appears to me tried to get his PHV fee waived!), which imo supports my claim that the investors are not MERS’ members and all that means, which is a LOT:

    “…And basically what this boils down to is, the bankruptcy judges are frustrated. You’re not — you’re either NOT WILLING OR NOT ABLE
    (my cap emphasis) especially in those cases where the beneficial interest has been transferred BEYOND THE MEMBERS who belong to MERS, you’re not willing nor ABLE to reveal who the principals are. It may be a thousand people. It may be two or three municipal funds.”

    Trust me (but not for long because I’m going to link the transcript), MERS et al did NOT want to discuss that!

  39. @Martha


  40. A person CONVICTED of EIGHTY straw man loan schemes EXACTLY as I allege she did to me…. is in prison. I did NOT sign the recorded Deeds of Trust they/she forged, and I HIRED an FORGERY EXPERT who declared the DOTS are FORGERIES.

    Yet, what does the LA Sup Court do?
    It takes JUDICIAL NOTICE of the DISPUTED DOTS I allege this convicted criminal forged, and it NEVER EVER, NOT ONCE even aknowledges it has even READ this EXPERTS DECLARATION.

    This is a test. It is the pro se test to beat all pro se tests. and I do not want to be pro se, its just no learned….attorney has guts enough to take this on.
    I do not blame them for not fighting the beast. But its their children who will pay in the end for them not fighting.

  41. @jg

    you said: “They assign to the sec’n trustee because that’s the only assgt possible that I know of for the benefit of the trust investors.”

    But—HOW is the foreclosure sale a “benefit of the trust investors”?
    This is what I’m not understanding…how do these “investors” (supposedly) get any money from the trustee’s sale? Do they? That is what the servicers are asserting…

    And, jg—here is something really weird (as in suspicious)—after the trustee’s sale I was sent TWO DIFFERENT “Notice To Quit” papers in the mail! One was from Deutsche—claiming they were the “owner”—and the other one was from the real estate investor who actually bought at the sale—also claiming ownership…so—Deutsche was literally on a kind of “auto-pilot”, sending out the NTQ…do you see that? Can you believe that? They assumed no one bought and just sent out the NTQ—with no return address and just this at the bottom of the letter:


    And yet—their spokesman says Deutsche doesn’t own any loans!!!

  42. Just to try to tie this up, there is no “presumption” of any validity of the transfer of an interest in real property made verbally. In fact, not only is there no presumption, transfers are made subject to the st of frauds, which demands a writing. As to Hogan, the OR court was quick to point out that a dot in OR acts as a lien, not a transfer of interest in real property, and that may be why they could find that the transfer (key word here, remember!) of a note can carry the coll instrument with it. Surely this can’t be true in title-theory states.
    Illegitimate bull presented as presumptions can and must be challenged. Like if someone says he signed as agent, well, okay, but since there’s no presumption of that agency, where’s your admissable evidence? If someone signs a NOD as alleged agent for the subd trustee, there is no presumption of that agency, pretty sure.

    There is never any evidence MERS is or was anyone’s agent, for example. Any such finding was either imo illogical and errant or based on inadmissable hearsay in the form of parol evidence, which is generally inadmissable verbal testimony outside the 4 corners of a written agreement.
    And that reminds me. Some jurists in CA decided that if a subd of trustee were done after the alleged subd trustee issued a NOD (don’t try this in NV), this constituted substantial compliance with the rules. Bah! You lost your right to redemption when non-j foreclosure came along, which was up to a year after f/c in some states. Instead, you now get a 30 day notice to cure, think it’s 30 days. So if you got a NOD on May 1st which you didn’t take too seriously because you didn’t rec. the name JoeBlow dot Trustee, and then they sub’d the trustee to Joe Blow three days before the sale date, how much notice did you really get? If you looked at the CA statutes at the time of the NOD, wouldn’t your reliance on their recitation be reasonable? They say the subd has to be done before the NOD as I recall. So, you got three days. I haven’t seen that argument, but I’d like to. And by the way, since the subd trustee wasn’t really the subd trustee at the time of the NOD it issued, what is anyone doing sharing your personal info (ss #, $$$ stuff) with that party?! Oops!
    Not an attorney – just my impressions of stuff I’ve read.

  43. The standard for getting rid of a legitimate presumption might be ‘preponderance of the evidence’ v ‘clear and convincing evidence’.
    I jez kaint remember. Lawyers should know or one could look it up.

  44. They assign to the sec’n trustee because that’s the only assgt possible that I know of for the benefit of the trust investors. Could they actually made the assgt to the trust itself: “to Trust 1243A-2005” ? I don’t know, (but isnt’ that what the psa’s called for, come to think of it?) or if it’s being done that way. Even if that were done, it would still be the secn trustee who acted on its behalf. “Trusts” don’t act. Someone acts for them. But, there is a presumption that the sec’n trustee has certain rights or maybe more appropriately called duties, including to command foreclosure thru the dot trustee (who is always sub’d as we know). In 2012, I say that’s not a fact in evidence, first of all and is no longer a reasonable or warranted presumption, if it ever were.
    For those who don’t know, a presumption is something which is believed mol as factual though not necessarily proved. A presumption, for example, is that in community property states, all property acquired during marriage is the property of both spouses. Legitimate presumptions must be overcome by clear and convincing evidence, I think is the standard. A thing which is legitimately – key word – presumed as a matter of law (guess that’s it) must be overcome by its opposition. There are many, many bs presumptions going on these days, things which are not entitled to presumption and must be proved. The banksters throw them out there as if their crap is entitled to presumption, when it is absolutely not. But it is generally, unfortunately, up to one who opposes such a presumption to bring up the issue. A court can do so sua sponte – of its own accord. Many don’t, but some courts find an obligation or right to do so.
    And then, if a secn trustee is supposedly the guy commanding f/d, , why? Has something factually come to his attention, and if so, in what format? The servicer sends a ‘this borrower is behind letter to the sec’n trustee’?
    What has come to his attention and in what format? The sec’n trustee in all likelihood is not commanding f/c – it’s the servicer. The svcr could do that if it’s contractually authorized to do it. And if it joins the rpii, pursuant to rule 17. The fact of the matter imo is that these days, no presumption of authority in any regard is warranted. Okay. So then WHY wont the servicer fork over the source of its authority and why wont’ a secn trustee? How tough can this be?
    And this goes for execution of ANY doc in this sorry mess.

    I quoted something from Allen v Web yesterday. Here’s another:

    “A nominal title holder is not the real party in interest.” So then how can a nominal party assign the interest? Where is the nominal party’s authority to do so (even if it were factually that nominal party doing the assgt, which it isn’t?) That authority can’t be presumed.

  45. tnharry, on July 18, 2012 at 5:00 pm said:
    except they just assign out of mers to the holder right before initiating the foreclosure. problem solved

    But—they assign to the Trustee of the MBS—how can the Trustee be the owner/ben?

  46. jg–“you know that the loan went to xyz trust (supposedly)? The servicer told you this, also, said it’s in a trust and Deutsche is the trustee? ”

    Yes and yes.

    Absolutely Deutsche was aware! But, John Gallagher spoke publicly many times regarding the fact that Deutsche “only acts as Trustee—and has no beneficial interest or stake in the underlying loans…”


  47. @carie at 7:44 – you know that the loan went to xyz trust (supposedly)? The servicer told you this, also, said it’s in a trust and Deutsche is the trustee? The Deutsche trustee of xyz told you that the trust had no ben interest in your loan – or – did they tell you Deutsche itself has no interest in the loans? It’s true that the sec’n trustee has no ben interest in the loans – it’s just the trustee, just as is the case with the dot trustee. He has no ben interest, either. Do you know if Deutsche were aware someone was coming after you in its name? When I said that about the econ interest, it was either a direct quote or paraphrasing what the OR SC court said in Hogan.

  48. as a follow up to what I just posted—it is confusing because in my case the Trustee (Deutsche) of the MBS was the named beneficiary in my foreclosure—but the spokesman for Deutsche—John Gallagher—has said over and over that they have no beneficial interest in the loans…

    How is that not insane?

  49. @jg

    you said: “The ben is the party with the economic interest in the debt.”

    Please answer—anyone:

    How can the Trustee of the MBS have economic interest in the debt? I mean—if someone paid off their “loan” with a check written to the servicer—which is what is demanded by the servicer—then HOW is the Trustee of the MBS “the party with the economic interest in the debt”???

  50. But, tn harry, I can’t agree with you at 12:48. This case, the format for f/c, mirrors just about all of them prior to MERS’ Consent Order: “MERS” was alleging to be foreclosing prior to that time. Under this opinion, no, I don’t believe they’ll be good to go with an assgt from “MERS” to GMAC. At least they shouldn’t be, because you know as well as I do that the likelihood of one assignment reflecting the facts is not good: A to D assgt. In that regard, tho, it finds the rest of us pretty much where we are now: fighting the validity of those assignments. But I do think in Oregon, they’re going to have a more difficult time with A to D assignments. And while the court didn’t reach this issue, it was not before it, since MERS was found to not be the ben, what would “MERS” have to assign? It could only relinquish any nominal anything, otherwise known as a quit claim, if that. That may put the kabosh on any “MERS” assignments for those who are willing and able henceforth to bring that issue, at least in OR. I don’t know it’s retroactive application.

  51. yep, carie, that’s the bomb, or one of them. The OR SC, and I’m still dizzy from reading that thing, found that despite the language claiming MERS is the ben in the dot (kind of like NY was it ? found in MERS v Johnston), MERS isn’t, and that decision was reached based on language in OR statutes. The ben is the party with the economic interest in the debt. And on that note, it’s lucky for them the real lender is named, or there would be NO ben to be found in a MERS’ dot). And the reasoning of the OR SC in that regard seems to retire my pondering that there is no ben named, at least in OR, (I thought this based on MERS not being the ben – the court found the ben is the lender named on the doc). Oregon law says that prior to f/c, any assgt of the dot must be recorded. The OR SC agreed that the ben interest had been transferred (the orig lender out of picture), but no transfers have been recorded. If one must be recorded, then certainly they all must (say I) or the chain of title is corrupt. No assgt from A to D could be recognized. Need the old A to b to c to d. Well now, that’s gonna be a problem for the banksters since we know those assgt weren’t done, nor were the notes properly endorsed.

    The OR SC also found that a coll instrument could transfer with a transfer of the debt (OR is a lien-theory state), which I hate. BUT, the court nonetheless found that a transfer done that way must still be recorded. Now, the court said there’s nothing to preclude assgt of the transfer of a note. Well, notes have never been recorded, for one thing – have never been allowed to be recorded, to the best of my info, so that’s weird. Maybe they can be recorded. News to me. Then the court offered an alternative and that was to notice the transfer of the note by “a separate writing memoralizing that transfer”. Hmmmmmm…. And what in the case of bearer notes? I think homeowners in Oregon just got a whole new playbook….based on existing law. The banksters won’t play dead, tho, so probably better anticipate their moves to attempt to conform to this decision. Probably continue trying to use A to D assignments – yes, the very same self-assignments we’re subjected to by the purchase of MERS’ name by its members.

    This ruling, until and unless overturned by a higher court, probably will only impact those in Oregon because it is specific to OR statutes. I don’t know its value, if any, to those already foreclosed on in OR by the boogie man. But one might compare your state statutes (listed on p. 2 of the decision) with Oregon’s and see what’s what.

    I, like tnharry, saw no reference to credit bids.

  52. except they just assign out of mers to the holder right before initiating the foreclosure. problem solved

  53. “…And the import of our holding is this: A
    beneficiary that uses MERS to avoid publicly recording assignments of a trust deed
    cannot avail itself of a nonjudicial foreclosure process that requires that very thing–
    publicly recorded assignments…”

  54. The Niday court identifies state non-judicial foreclosure statutes on page 2:


  55. this ANONYMOUS posting relates to article:

    “…certificate purchasers” are the banks themselves (security underwriters), and they only purchase a “pro-rata” share to a “pool” of cash flows —- that is all — they are NOT the mortgagee/creditor—the trust is assigned the loans from which the pass-through cash flows are derived—it is the DEPOSITOR (subsidiary), that owns the collections rights (they are not mortgage loans), and the Trust itself. The “certificate purchasers” (the bank security underwriters (another subsidiary) themselves) then repackage the certificates to “pro-rata” cash flows into CDOs that are marketed to security investors — who are also never the mortgagee/creditor. According to all PSAs — there must be a documented valid sale of the “loans”, with supporting Mortgage Schedule to the Depositor in order for any Trust to be valid. There was never any valid sale of loans — and the loans were never actually loans — they were collection rights.”

    “…since the “loan” refinances (subprime/alt-a), and jumbo new purchases were non-compliant and non-performing manufactured defaults, no funding at all was necessary (except for the cash-out for the loans). The warehouse lines of credit never actually transferred any actual cash for funding. These lines of credit were simply “credit lines” that the “Depositor” would provide to their correspondent lenders. Once the “loan” refinance origination was completed the Depositor would then reverse the “credit” owed by the correspondent (originator). This never involved any actual deposit of cash proceeds —- the “funding” payoff check is never “deposited” into any bank account. The check is routed to a security derivative clearing house — who then simply cancels the credit-line transaction.”

    “…if the actual party does not come forward claiming that the debt is owed to them, and the actual party cannot PROVE how they came to own the collection rights — borrower does not owe the debt to anyone. That party is never going to able to demonstrate that collection rights belong to them because they would have to divulge the above fraudulent process and that the “mortgage loan” from onset was not a mortgage but, instead, collection rights…”

  56. But it really wasn’t…they are just servicer/debt collectors…who would KEEP the full amount of the “payoff check”…if you gave them one…

  57. “how did you get that loan.”

    Then they say—we don’t own it, we only service it—your “loan” was securitized…

  58. I am in the middle of this sink hole right now. My place was sold at auction 12/1/10, we won the eviction as they didn’t do that right either in 1/11. We sued them 1/31/11. The rescinded the non-judicial foreclosure 7/11 because in their words, they wanted to make sure they could get clean title (but they did nothing wrong). We just found out they rescinded it 5/12 in a motion for summary judgment because they rescinded it. In the same paper, they filed judicial foreclosure summary judgment papers. Our original paperwork has our original lender (Americorp Funding, who was convicted of bank fraud in 2007) on it with no mention of MERS. The note was then endorsed to Chevy Chase Bank and the DOT assigned to MERS for Chevy Chase Bank. Somewhere along the line it was allegedly turned into Chevy Chase mortgage backed certificates with US Bank as the trustee of the certificates. There is paperwork filled out before the loan was underwritten for acceptance to Chevy Chase Bank, but no mention of AF getting the loan for CCB in the original paperwork. Bear Stearnes is mentioned in some paperwork too, but I don’t know where they fit into the equation. US Bank made the credit bid at the auction, but Capital One as the servicer for Chevy Chase certificates is the one who foreclosed, US Bank was never mentioned in the foreclosure. Now the attorneys for USB, CO/CCC, and MERS says they are also foreclosing for the investors in the CCCs. Talk about talking in circles. They will not send paperwork on the money trail, I have a motion to compel in now for that. I could go on and on. I am doing this by myself too as I have no money to pay a lawyer and when I asked the court for legal help, they said I was doing fine and didn’t need it LOL

  59. If your loan was current/paid in advance and you applied for a loan mod. The servicers automatically put your payments into escrow/suspense account while you were being considered for the mod. Did you know that? You started running up servicer fees the second you applied for the mod and those fees were paid out of your regular payments. This is where the Fraudently Induced Fraud/DEFAULToccured and by the time you figured this out, they had filed forclosure … you admitted the debt as owing to them, you gave them lien on title and waived other legal rights. Guess What? All those people have Corrupted Titles and MOST do not even know it yet. Wait til they go to sell those properties. The bottom has not hit yet …

  60. looks like the foreclosure firm screwed this one up one side and down the other. even going back to 2006 you weren’t supposed to be foreclosing in any fashion to imply MERS was the foreclosing entity. they need an assignment from MERS to GMAC and they’ll be good to go for round 2. the opinion referenced that the atty for GMAC had the original note and that they were the holder of same.

    Neil – I’m missing the discussion of the credit bid in the opinion. I know it’s a pet issue for you but I didn’t notice it in there.

    overall a good case for defense in Oregon. as this set aside the summary judgment, maybe we’ll get some further nuggets of wisdom from the trial on the merits and its subsequent appeal.

  61. … clears throat and asks again… (with caps).. So why were Attorneys directing homeowners with loan mods (and dont tell me for their best intrest line..) while at the same time NOT TELLING the homeowner about the bad titles they were being left with? @tnharry… I would like to hear you view on this.

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