Without a contract in writing executed with the formalities required for transfer of interests in real property, it is highly probable that any instrument executed on behalf of MERS means nothing without the necessity of drilling into the authority or knowledge of the signor. In fact, it might just be that the execution of an assignment might be the utterance of a false instrument for purposes of recording, which in and of itself constitutes illegal activity.
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Upon close inspection, investigation and research of hundreds of cases we have found no evidence that MERS ever enters into any contract for agency or anything else with originators who are not lenders. So we conclude that in cases where the originator is named on the note as Payee and on the Mortgage as Mortgagee or on the Deed of Trust as beneficiary, no such written contract exists and no correspondence or other communication exists between the originator and MERS.
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The current consensus is that MERS is a naked nominee, something I have repeated myself. But that appears to be true only in cases where the originator is a member of MERS and has therefore entered into an agency agreement with MERS.
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Entities like Broker One and American Brokers Conduit, whose name tells the whole story, are not likely to have had any contract, email, correspondence directly with MERS and are probably not party to any agreement in which the originator, if it exists at all, has agreed to let MERS be its agent and if so, under what conditions and for how long.
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I think the mistake we might have all made is in accepting the implied agency contract inferred from the face of the Mortgage or Deed of Trust. In many if not most courts the assignment by MERS of a Mortgage or Beneficial interest in a Deed of Trust is seen as the act of a “disclosed” naked nominee.
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First, basic law dictates that any contract in which the transfer of title to real property is involved must be written not oral, inferred or implied. Second, each state varies but all require the recording of the instrument.
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Third, there was no disclosure prior to closing which violates TILA disclosure requirements. This raises possibilities of claims in a lawsuit by the homeowner or affirmative defenses of a homeowner if they are sued. As affirmative defenses they would claims of recoupment.
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Nobody tells the prospective borrower that when they sign the Mortgage or Deed of Trust they will be handing over an interest in their new or existing home to an entity that might serve the interests of just anyone. But, in fact, that is what is happening which means that on the face of the Deed of Trust or Mortgage, the originating parties are violating the provisions of TILA that make table funded loans against public policy. And as any 1st year law student will tell you any contract that violates public policy is probably void.
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At closing, if the borrowers are reading at all, MERS doesn’t show up until the day of closing and it is never pointed out by closing agents, originators or anyone else acting as mortgage broker or lender. Nor is the written agreement appointing MERS as “nominee” appear anywhere ever.
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If the appointment of MERS is void it might void the Mortgage or Deed of Trust. Or, it might be surplusage which is more likely. That means the mention of MERS means nothing.
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Hence the assignment of the Mortgage or Deed of Trust would be required to be executed by the named lender, who in turn probably could not assign the mortgage because at the time they are asked to sign such an instrument they (a) don’t exist and/or (b) don’t own the debt and probably never did. As such they would be uttering a false instrument for recording which amounts to two illegal acts probably constituting crimes.
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PRACTICE NOTE: ASSIGNMENT OF A MORTGAGE WITHOUT TRANSFER OF THE DEBT IS A NULLITY. Lawyers for the foreclosure mills are often using MERS assignments as a substitute for transfer of the debt.
Filed under: burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, jurisdiction, legal standing, Mortgage, Motions, Pleading, Servicer, sham transactions, standing, STATUTES, Title, trustee | Tagged: agency, agent, MERS, naked nominee, Power of Attorney |
fawn, no one needs the borrowers permission to transfer. They have to notify within 30 days of the transfer of your loan.
What is not said here, is the bank has to give you 30 days to comply back to them on that transfer from the bank to the new holder.
Mers is only showing in a letter from servicer A but not in any assignments. Yet the letter states all assignments go through mers?
I have a 3rd servicer now. The modification from servicer A wad never recorded yet there was an an assignment of mortgage from servicer A to servicer B. Servicer B admitted to the court they did not have the original modification but they still recorded the copy 8 years after i signed it with servicer A. Now comes Servicer C. They have an assignment of mortgage from servicer B to C the name ofv servicer is not the plaintiff of record. I think this is getting highly convoluted and judge well not admit it and continues. He can see my previous case wad dismissed for lack of discovery and this line is in it’s 5th year. Getting weary.
Modification is the doom. MERS is front. And, many do not even know that their “refinance” was internally deemed — a modification. Big problem is that many simply do not care. THAT has allowed the process to continue. Louise — correct — courts are blocking. And that is why I have said – government controls.
Worked on this line of reasoning on my case, and judge would not even hear it. The judges are an immense problem with all of this litigation. Not following the law.
I found a possible important nugget in my most recent assignment of mortgage from servicer A to Servicer B.
It includes the Modification #1 on it HOWEVER it does NOT include modification #2 on it.
So it peaked my interest of course. I went to the county clerks office and see the clerks stamp for Modification #1 but Modification #2 is not even recorded in their database.
Since both Modifications came from servicer A. Would this make their assignment of mortgage from servicer A to servicer B invalid/void ???