Denial is not a Defense: Registrars and Clerks Are Missing the Point and Most of Them Know It

It is the transfer document itself that suggests there was something to transfer. And it suggests that there really is a transferor and transferee because that is what is written on a piece of paper. But there is no transaction that is memorialized. It is all fiction. Nothing was transferred. But that fiction leads to defeat for homeowners unless it is aggressively contested. 

If someone with no claim produces a document that says there is a claim, the courts are required to treat the supporting documents as real until proven otherwise. You can prove otherwise by direct evidence or you can prove it by indirect evidence. But the burden of proving otherwise is squarely on the homeowner and if they fail to understand how and when to apply the rules of civil procedure and evidence they lose their home to a dishonest claimant who probably never made a formal appearance in court.

Take a look at this from Minnesota:

507.413 AUTHORITY OF MORTGAGEE DESIGNATED AS NOMINEE OR AGENT.(a) An assignment, satisfaction, release, or power of attorney to foreclose is entitled to be recorded in the office of the county recorder or filed with the registrar of titles and is sufficient to assign, satisfy, release, or authorize the foreclosure of a mortgage if:(

1) a mortgage is granted to a mortgagee as nominee or agent for a third party identified in the mortgage, and the thirdparty’s successors and assigns;

(2) a subsequent assignment, satisfaction, release of the mortgage, or power of attorney to foreclose the mortgage, is executed by the mortgagee or the third party, its successors or assigns; and

(3) the assignment, satisfaction, release, or power of attorney to foreclose is in recordable form.The county recorder and registrar of titles shall rely upon this assignment, satisfaction, release, or power of attorney to foreclose to assign, satisfy, release, or foreclose the mortgage.(b) This section applies to any mortgage, assignment, satisfaction, release, or power of attorney to foreclose executed, recorded, or filed before, on, or after August 1, 2004.

History:2004 c 153 s 2Minnesota Statutes AnnotatedProperty and Property Interests (Ch. 500-515b)SuperBrowse Chapter 508. Registration of Land (Refs & Annos)M.S.A. § 508.72

This is carefully worded by lobbyists from Wall Street “Banks” (aka stockbrokers). Their plan requires the creation of illusion and in order to do that they must make it appear (a) that the underlying obligation exists, (b) that it is established on the accounting ledgers of someone who paid value for it, and (c) that it has been “transferred” to some party who is a designated virtual creditor for purposes of enforcement. Lawyers and pro se litigants who fail to pursue these points are usually destined for failure in the courtroom.

The issue here is that MERS is an agent. Calling it a nominee changes nothing. MERS is the acronym of a series of names all related to “Mortgage Electronic Registration Systems, Inc., MersCorp, or MERS, Inc. dba Mersinc.com. It is an agent for the party named as its principal who is generally either not a real company, not a real lender, or both. So MERS is the agent for a principal that has nothing to do with the homeowner transaction except that is paid a fee for getting the homeowner to sign papers under false pretense.

You will find “principal” in the mortgage (labeled as a “lender,” but is not generally lending any money or establishing any loan account receivable. MERS does not appear on any promissory note nor any other document. It neither accepts nor receives ownership of anything. It obtains bare legal naked title without any ownership of the debt, note, or mortgage (or deed of trust). The banks have worded these laws to literally create the illusion of something out of nothing.

When the successor pops up, they are playing on the court’s natural inclination, backed up by the absence of any credible contest from the homeowner, to assume that everything before the “successor” came into the picture was true, accurate, and valid — this avoiding the painful admission that the entire scheme was a scam mixing parts of Ponzi scheme, boiler room, bucket shop and other illegal practices that often scape the “Self-regulation” that is relied upon by so many people —especially if they believe the myth of “free market.”

In short, it is the transfer itself that suggests there was something to transfer. And it suggests that there really is a transferor and transferee because that is what is written on a piece of paper. But there is no transaction that is memorialized. It is all fiction. Nothing was transferred. But that fiction leads to defeat for homeowners unless it is aggressively contested. 

By allowing the words “successors and assigns” to appear, they distract from the question of whether there was a debt, whether it was really transferred by payment of value, and whether anyone is an assign or successor.

This is not rocket science. If there is no loan account receivable anywhere on any books of account, then a “payment history” produced by yet another disinterested and unauthorized third party adds nothing to the mix. In that scenario there is no basis under any law that any underlying debt or liability of the homeowner exists; but there is a facial debt created by executing the promissory note and that allows for the creation and recording of the mortgage or deed of trust.

And that is why denial doesn’t work alone. The homeowner must disprove the facial validity of the documents. And given the circumstances where the true facts under the sole custody and control of their position they can only do so through the use of indirect evidence, raising the inference that the debt does not exist and that even if it did exist it is not owned by or controlled by the named claimant. This is much easier than most homeowners and their lawyers perceive the task. I have even done it without discovery.

Someone is an assign ONLY if there is an instrument of assignment and the assignor had ownership of the thing being assigned. There is no position of “assign” if those conditions are not met, That is basic black letter law for centuries if not millennia.

Someone is a successor ONLY if they succeded to the rights and ownership of the predecessor. They can ONLY get into that position if they paid for the debt, note, and mortgage altogether or they purchased or merged with the predecessor. They are not a successor just because they’re the next person to make a claim. It doesn’t work that way. It never has worked that way and it never will work that way. This no philosophical discussion. We are an organized society with rules and those are the rules.

But that is exactly the point. The Wall Street banks have created boiler-plated gibberish and attached a meaning to it. Executing an allonge by someone without ownership or authority to do so means there is no allonge or endorsement. Executing an assignment without ownership and authority over the debt, note, and mortgage is a legal nullity in all jurisdictions.

The problem for homeowners and many lawyers is that they don’t get acquainted with the rules.

If someone with no claim produces a document that says there is a claim, the courts are required to treat the document as real until proven otherwise. You can prove otherwise by direct evidence or you can price it by indirect evidence. But the burden of proving otherwise is squarely on the homeowner and if they fail to understand how and when to apply the rules of civil procedure and evidence they end up losing their home to a dishonest claimant who probably never made a formal appearance in court because the lawyer had no agreement with the named claimant (allowing for plausible deniability in case the IRS seeks recovery of unpaid taxes the SEC seeks disgorgement and fines, the FTC seeks disgorgement, damages, and fines, or some homeowner gets a judgment for compensatory or punitive damages in whopping verdict — after the malicious intent of the scheme is revealed).

Judges are not supposed to pay any attention to discovery requests unless you make it an issue according to the rules. Judges are required to assume a valid claim as long it technically is stated to be a claim. Denying is not the same as defending.

The registrars and clerks have become addicted to what little they get from Wall Street brokers who are consistently violating the law of their jurisdiction, avoiding taxes and fees, and generally causing mayhem. And at first, they all started to scream until they were silenced by Wall Street influence, money and politics.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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One Response

  1. Denial is not a defense. Its a strategy to defraud homeowners and steal their homes.

    And it works thanks to total anarchy because Judges do not care about the Law

    A NON-EXISTING Plaintiff (usually a REMIC Trust) CANNOT send any “agents” to the Court.

    A non-existing Trust cannot name anyone as “Trustee” as well as accept any “assignments”. Non-existing Trust cannot have a Board of Directors who “sell” homes.

    BTW, since 2016 MERS is now ICE, Intercontinental Exchange, the parent company of the New York Stock Exchange, is now also the parent company of MERSCORP Holdings, as the companies announced Friday that ICE has acquired all of MERS.

    The deal comes just over two years after ICE acquired a majority stake in MERSCORP, the owner of Mortgage Electronic Registrations Systems and operator of the MERS System, a national electronic registry that tracks the changes in servicing rights and beneficial ownership interests in U.S.-based mortgages.

    Now, ICE owns all of MERS after acquiring the remaining stake in the company for an undisclosed sum.

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