MERS: It is not what they say, it is what they don’t say

As mortgagee of record, MERS holds mortgage liens. When MERS serves as mortgagee of record, it does so as a nominee of the corresponding Lender and that Lender’s successors and assigns. It is through this nominee relationship with the current Lender that any separation or splitting of the mortgage from the note is prevented. In other words, if the Lender is succeeded in interest by another party (e.g. through a merger or acquisition) or if the Lender transfers the note to another party (e.g. the note is sold and negotiated) then MERS will continue to act as mortgagee on behalf of (i.e. as a nominee of) that new Lender, which is a successor or assign of the previous Lender. It is only when MERS actually assigns the mortgage (i.e. a MERS Signing Officer executes an assignment of mortgage) that MERS no longer holds any interest in the mortgage and the lien is transferred.

see MERS_System_Procedures Manual

MERS never holds any mortgage liens. What they fail to say is that MERS never has any financial interest in any debt, note or mortgage. Under our current system of laws which has existed for centuries, it is impossible to transfer a lien without transferring the underlying debt. Such transfers are dubbed, in all courts, as legal nullities. That means for purposes of judicial review, the transfer does not exist. Therefore, MERS does not own, hold or otherwise have any interest in any mortgage or lien. It might serve as the agent for a party who could qualify as a lienholder. And that is exactly what every mortgage and deed of trust says.

It is true that if the underlying obligation was sold by the principal (“Lender”) for whom the agent (MERS) was acting, then MERS would no longer be the agent of the named principal (“lender”) but would rather be the agent of the transferee (“successor lender”). But there never is such a sale. Therefore, there is no successor lender.

And unless the originator was merged with or was acquired by the party claiming to be a successful lender, and the terms of that transaction included the transfer of ownership of underlying obligations from homeowners, there is no possibility that anyone can legally to be the principal in a relationship with MERS. But they do it anyway.

None of the companies pretending to be successor lenders ever paid for any obligation owed by any homeowner and therefore none of those companies has ever become the owner of those obligations, any legal debt, note or mortgage issued by the homeowner. The purpose of MERS is to blur the record rather than keep track of actual transactions. By showing “transfers” on MERS the investment banks are adding more layers of smoke and mirrors.

They say that no splitting of the note from the mortgage can occur as a result of the use of MERS. But they don’t say that the note has never been split from the mortgage. And more importantly, they don’t say anything about the payment value for the underlying obligation as required by article 9 section 203 of the uniform commercial code which has been adopted verbatim in all US jurisdictions.

They also don’t specify any duties of MERS, which consists of about four dozen employees who maintain a colony  of servers that are actually operated by “members.” That’s because MERS has no duties and does not perform any functions other than allowing members to make, change or remove entries of data on the servers. MERS is not a servicer in any sense of the word and the parties who are referred to as servicers are not servicers either. None of them collect money from homeowners, deposit them in an account opened by the company claiming to be the servicer, and then disperse the proceeds to an “investor.”

They are all sham entities — but if you are not in a position where you can submit legal discovery demands during litigation, all allegations concerning those sham entities will be taken as true and will be used as a foundation for the entry of a final judgment that either orders or permits the sale of the property.

You will likely never see a foreclosure proceeding in which the lawyers for the claimant alleges that the party named as plaintiff or beneficiary has paid value for the underlying obligation — which is a critical condition precedent to filing any enforcement action. It is all implied. While MERS talks about the note it never sees, handles, or knows anything about the note. but the house of cards falls down when you ask for the identity of the creditor who paid value for the underlying obligation and the manner in which that creditor granted authority to enforce the note.

What is left out of the discussion is that possession of the original note alone does not necessarily confirm the authority to enforce it. It might be presumed from the possession of the “original note” (which is most likely a fabrication), but the house of cards falls down when you ask for the identity of the creditor who paid value for the underlying application and the manner in which that creditor granted authority to enforce the note.

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Neil F Garfield, MBA, JD, 74, 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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2 Responses

  1. MERS is a trademark registered by Bank of America in 1998.

    MERS will never respond to your inquiries regarding any transfers.

    MERS will never acknowledge any acceptance of any Mortgages.

    MERS never hired subordinate forgers to prepare “assignments” of any mortgageas

    MERS does not have any agency or membership relationionship with any GSEs and with most pretender Ledners.

    MERS even does not have business registration in some States like MI to conduct business.

  2. Also if the alleged ‘lender’ is a nonexistent fiction – as a sham only acting as a facade to conceal identities, conduct and transactions – that “lender” was never a bona fide “Member” having a contract of “Membership” with MERSCORP Holdings, Inc./Intercontinental Exchange (MERS-ICE).

    In order for any party to engage in any action or transaction involving the ‘mortgage’ if the “lender” is not a Member then the first transaction has to be assignment from a non-Member to a “Member” otherwise no action could be taken by any party not having legally entered into, bound or consummated a ‘contract’ of membership – if there was not at first an assignment immediately at origination to a MERS Member no legitimate transactions could occur merely because someone typed MERS into the underlying transactional paperwork.

    Tell them to produce a ‘contract’ between MERSCORP and the lender.

    Also the faux ‘servicers’ like PHH et al. used their own MIN (MERS identification number) in most cases which has no legal bearing on the ability to enforce a contract in the name of a non-Member –

    Nothing in the underlying obligation gave, i.e., the faux party rights whose identity and MERS ID were cleverly disguised in a box outside the body of the contract – unless the identity of whose number it was was spelled out for the consumer to decide if he/she wanted to not only do business with the ‘lender’ but also the phony in the MIN box . . . consumers have a right to truthful and accurate details – if the MIN party is not the Lender and vice versa – the MIN doesn’t belong to the Lender there is nothing tethering MERSCORP Holdings, Inc./ICE to either principal named in the body of the contract – homeowners were obviously never “Members” and if t he Lender was a phone place card it too was never a Member. No Membership no entry into the database system.

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