How to Think About MERS

If you are going to challenge a foreclosure or sue for wrongful foreclosure and fraud, you need to know what you are doing and know what your opposition has been doing. You also must know what to do about it because knowing is not enough. You need to convince a judge who starts from a bias of upholding “contract” because that is what judges are supposed to do in our system.

Bottom Line: You must convince the judge that the claimant has not satisfied its burden of establishing an enforceable contract between itself and the borrower. And in the case of foreclosure the claimant must satisfy the condition precedent of ownership of the debt. That condition is often “met” solely by legal presumption arising from documentation that is proffered without any meaningful objection and without any impeachment of foundation witnesses.

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Think about MERS as your next door neighbor. He lets anyone come into his house and play with his computer. You simply are required to pay him a fee every month and he gives you a key, and the login and password to get into his computer.
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So you go in and prepare a report from his computer saying that your loan is all paid up and a release and satisfaction is being filed. Just to be on the safe side you show that the mortgage was transferred to a party that has not made any claim for collection, further confusing the issue of ownership of the debt or mortgage.
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Then you go to court and introduce the report as proof that the mortgage is satisfied. The report says is from John  Smith, your neighbor who is in the business of keeping mortgage records. You don’t show a canceled check or wire transfer receipt because there is no canceled check or wire transfer receipt; you just introduce the report that you created from your own data for your own purposes and published it with the sole purpose of showing it in court.
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You bring in your neighbor who testifies that these records are kept in the ordinary course of his business and that the entries were made at or near the time of a transaction. (Notice he doesn’t say the entries were made at or near the time of THE transaction).
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The court accepts the document that you prepared on your neighbor’s computer as evidence that the loan was entirely paid off and that a satisfaction of mortgage should have been issued. Notice that the evidence is not that YOU paid it off but rather that is was just paid off.
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The response from your opposition would be that they want to see proof that you paid it off. But you have already introduced the report as your neighbor’s report (an independent third party) and the court accepted it as a business record of your neighbor. The court record now has “conclusive” evidence that the the loan was paid off. Further inquiry is not required and you shouldn’t be required to answer such a silly question that invades your private financial information.
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Judgment is entered in your favor and the opposing party is taxed with costs and fees if you had an attorney. Further the court declares the mortgage satisfied and that the final order of the court should be recorded in the public records. Maybe the court orders the party you named in the report as being the new mortgagee to file a satisfaction of mortgage.
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That is how MERS works. It’s simple reason for being in existence is not just to avoid recording fees but to act as a substitute for proof of an actual transaction. MERS is the neighbor of the banks and servicers. It gives them the key, the login and the password. After that they are on their own as to what data is entered into MERS and what reports are issued from MERS and what is in each report issued under the name of MERS.
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So if someone is attempting to rely on a MERS report they are relying on a fiction of their own making. This is somewhat like uploading a fake trust document to SEC.gov and then citing to it as worthy of judicial notice or using it as a government filing. It isn’t. It’s just a fiction of their own making. And it never has the mortgage loan schedule attached which means the trust document is incomplete, subject to some later addition/revision that might or might not have been accepted by someone was authorized to accept it.
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Objections to the MERS report must be about foundation. Discovery and investigation is key to knowing the facts as they apply to your case. Writing and presenting the defense narrative in motions and pleadings is the other key. Here is what you should be thinking about:
  • Establish that nobody employed by MERS entered any data or produced any report.
  • Ask the players for the identity of the individuals who entered data.
  • If they give you the name, question the individual.
  • Ask for the identity of individuals who produced reports.
  • If they give you the name, question the individual.
All this will make opposing counsel very uncomfortable as you are zeroing in on the nub of a fraudulent scheme. The lawyers will start feeling the heat as they approach suborning perjury. The banks will feel the heat because it threatens to expose the reality that nearly all claimed securitizations of residential loans were faked. That is the key to a successful (and confidential) settlement — the value of your case as threat to their  entire scheme or parts of it.
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Spoiler alert: in most cases counsel will abandon the MERS report and use some other fabricated document instead. But you can use inconsistencies between their previous and current position to reveal that there are gaps that cannot be filled by legal presumptions.
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In order to start defending you must know things. But in order to get traction in court you need to convince the judge. Badly drafted pleadings undermine credibility. That is why you need professional assistance.
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The person drafting your defense narrative and the drafting your motions, discovery, and pleadings must know what needs to be said in order for the court to take the defense narrative seriously. And what needs to be said often sounds tame or irrelevant to lay people who want the judge to know that the opposition is a bunch of liars and thieves. Really good legal writers know that such conclusions are best left to the judge, after a process in which he/she gets thoroughly disgusted and exasperated with the lawyers, the servicer and the bank pretending to be a trustee of a dubious trust. 

3 Responses

  1. Hey can anyone answer a question? I have one of these ridiculous MERS transfers. New York foreclosure case since 2015 was just decided with this sentence “plaintiffs motion is denied with leave to renew upon disclosure”. My lawyer says it means we get discovery. I’m not trying to say I’m not a trusting soul, just saying I need more than one opinion nowadays. Everything I’ve read states that in order to renew, the bank will have to show that some matter of law or evidence would have to become available after commencement of the action and not just have been a forgotten detail. Is this a new tactic by judges or could I actually be close to winning?

  2. Finally the complete picture on MERS not just filing fees or simple beneficiary issues.

  3. This is a nice analogy Neil- judges have no idea that the MERS “officers” are employees of the servicer who have paid a $35 fee to receive their “Vice President of MERS” rubber stamp. Last I heard , there were 23,000 of them. This was in the testimony of either RK Arnold or William Hultsman, both of whom
    Testified as CEO or President of MERS. ( not sure which) perhaps you could provide the link to the testimony of each.

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