COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary
“Because the Defendants’ Petition does not comply with the requirements of Rule 14- 209(b)( 1), the court will grant the Plaintiffs’ Motion to Alter or Amend the order issued on October 16, 2008 and vacate the stay on the foreclosure action. The court’s decision in this regard, however, should not be read as a blanket approval of the foreclosure proceedings against the Defendants. Several documents required under section 7-105.1 of the Real Property Article and Rule 14-207 are not present in the case file. The Plaintiffs should review the requirements of those sections and submit the required documents accordingly.”
Editor’s Notes: This case is a lesson in not reading the bullet points without reading the opinion. On its face, the opinion goes against the homeowners straight down the line, even granting MERS the right to “initiate” foreclosure proceedings. The fact that MERS is not a creditor is not really addressed, and what would happen at an auction of the house after foreclosure is anyone’s guess. Would MERS submit a “bid” as a creditor (i.e., no money changes hands)? Probably, and it will be accepted because it LOOKS like they are the creditor from the court file. Would title be issued to MERS? Probably not as MERS cannot accept title pursuant to its agreement with members. These points were clearly missed by the court and I have no way of knowing all the points raised by the homeowners.
But one thing stands out to me — admissions by the homeowner that pretty much settled the matter in the mind of the Judge from the outset. —
- It appears as though the homeowners rolled over on whether the note and deed of trust were transferred. We all know that they were not and any attempt to do so now would neither be supported by facts or law — the securitization documents preventing such a transfer, the REMIC statute creating a giant tax problem, and the delivery of the documents being non-existent until the litigation came along — which is why the caveat at the end of the opinion is so important. The Judge saw that the documentation chain was incomplete and instructed the would-be foreclosers to submit the documentation before they go forward with any sale of the property.
- It appears that the homeowners rolled over on the question of whether payment was due, although they raised the question of to whom the payment might be due. As Katherine Porter has pointed out, the Judges seem to be taking the position that if the homeowner is liable, it doesn’t much matter to whom — that is a matter for the various parties in the securitization chain to work out. The owners of the mortgage bonds beg to differ of course as do several other parties not present in these proceedings and so any argument by the would-be foreclosers is pure sophistry — which the court seemed to have accepted. This is the method by which MERS and other parties finesse what would be requirements under rules of evidence; these are all parties who have absolutely no interest in the financial transaction and in fact are contractually and legally bound not to assert such an interest in the transaction or the ownership of the property, obligation, note or mortgage.
- “The Brunsons apparently do not dispute the fact that they owe the Plaintiffs over $400,000.00.” If in fact the homeowners made that admission either by pleading it in their case or through other means, the case is over and why shouldn’t it be? They admit they owe money, they admit the amount, they admit they owe it to MERS and they admit they owe it to the transferees, which is an admission that the transfer occurred and that it was done properly. So the court says after that, quite understandably, “Instead, they contest various aspects of the foreclosure procedure pending against them. The Brunsons’ allegations are at times difficult to understand. As best the court can determine, the Brunsons assert that the Plaintiffs have no standing to bring the action, that certain documents filed with the court are improper, that the Plaintiffs failed to file an Affidavit of Ownership, that it was defamatory and emotionally distressing to see their names and their property in the local newspaper foreclosure section and that they were never properly served.” So the Judge is left with the impression that the homeowner admits they owe the money but doesn’t want to pay it because they think they can use legal technicalities to get out of the obligation.
So the moral of the story for homeowners and their lawyers, is get your facts straight, get to know what the essential arguments are that you wish to present to the court and make damn sure you don’t first admit something that you later wish to make an issue of fact. No Judge has very much discretion on the facts if both sides are saying the same thing.
The moral of the story for Judges is that attorneys AND pro se litigants are fallible and your obligation to the state supersedes the rules of court if the laws of the state are about to be broken in ways that will corrupt the legal system and recorded title chains indefinitely. As dozens of Judges in many states have already concluded, the ineffectiveness of the presentation on behalf of the homeowner does not make recorded documents valid. Each time you allow these foreclosures to proceed you are creating the appearance that the parties are properly aligned even if your order says otherwise. This leads to auction sales and “credit bids” that are made by non-creditors, corrupting the title chain. Your question to those that wish to foreclose should be very simple and straightforward: what is the identity of the creditor(s) and how are we protecting both the interests of the creditor and the rights of the borrowers? Or, if you like it phrased another way, will my order be used to corrupt or clear title on this property?
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: AZZAM, BRUNSON, CARR, CASE NO: 12-C-08-1967, HARFORD COUNTY, Maryland, MOTION TO IDSMISS, WILLIAM O CARR | 13 Comments »