MERS $100M MICHIGAN CLASS ACTION COMPLAINT GOOD MODEL OF PLEADING

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WILLFUL CIRCUMVENTION OF JUDICIAL PROCESS GIVES RISE TO SUIT FOR DAMAGES

110509-MERS-Class-Action-Complaint

This pleading has several elements worthy of note and seem well-pleaded. Some of the “juicier” ones are toward the end. The key concept is that under recent decisions, any foreclosure and/or dispossession by MERS is VOID AB INITIO (FROM THE START, WHICH MEANS TREAT IT AS THOUGH IT NEVER HAPPENED].

Michigan had been a tough state, which is why the writers of this complaint went  to the unusual step of quoting a recent case. The issue at hand that lawyers are bringing to the attention of the courts is that there are, at a minimum, some 5 million transactions that took place relating to foreclosures that were nothing more than wild deeds.

The mistake made by the banks is that they are reassuming “what’s done is done” will take care of the title problem. Title problem don’t go away by magic. The ONLY solution to the title problem in those transactions (probably closer to 15-20 million when you consider resales and refi’s) is by getting the original homeowner’s signature ratifying the foreclosure.

Because under law, as it should be, the title registry at the county recorder’s coffice gives notice to the world the identity of the owner of the property. Were it not for political and economic pressure, no title examiner would even consider the title to be in any name other than the homeowner despite the foreclosure. Not even Wall Street can make this go away. If they get their way, Wall Street’s pernicious effect on the marketplace will become enlarged geometrically because it would mean that nobody would know if they were actually getting title on property they were buying and nobody would know if they were getting a lien on property they were financing.

Michigan was a difficult state to plead a case against MERS until April of this year. This class action, in which the damages probably are vastly understated, goes the extra step of quoting decisional law to justify revisiting the MERS question, as every state MUST do if they want to solve the puzzle of corrupted title.

“On April 21, 2011, the State of Michigan, Court of Appeals in the consolidated case of Residential Funding Co., LLC v. Gerald Saurman, (Residential Funding Co, LLC v. Saurman, 290248, 291443 (MICA)), issued a ruling stating in pertinent part that in cases where MERS did not own the underlying indebtedness, did not own an interest in the indebtedness secured by the mortgage, or did not service the mortgage, MERS was therefore unable to comply with the statutory requirements of MCL 600.3201(1)(d), and subsequently had no right to foreclose by advertisement.“

“The Court of Appeals continued, and ruled that in those such cases where MERS did foreclose by advertisement upon the foregoing conditions rendered those foreclosure proceedings void ab initio.”

The causes of action are the following:

1. INJUNCTIVE RELIEF AND DECLARATORY ORDER: Plaintiffs and Class Members request an appropriate order of this Court declaring the foreclosure actions of Defendant MERS as described herein void ab initio. [ab initio means from the start, which is to say it should be treated as though the foreclosures never happened. That means the homeowner who was “foreclosed” is still the woner and rightful possessor of the property, a result which I believe to be absolutely inevitable and necessary to preserve the sancity of the rule of law].
2. FRAUD AND MISREPRESENTATION: Defendant MERS did misrepresent facts, or purposely fail to disclose material facts, in prosecution of non-judicial foreclosure.
3. CONVERSION: Defendant MERS and others engaged in a continual course of conduct, pursuant to which they wrongfully dispossessed and/or disposed of the real property of the Plaintiffs and Class Members. Defendant MERS and others converted these properties into cash which they received through the sale of the subject real properties or by their acquiring title thereto.
4. TRESPASS: MERS trespass and invasion of Plaintiffs and Class Members rights and property was willful, wanton, reckless and malicious.
5. THEFT: MERS through their acts and omissions did commit theft upon the Plaintiffs and Class Members, whereby they fraudulently took the property of Plaintiffs and Class Members, without their consent, intending to deprive them of the value of their property, and to appropriate said property to their own use or that of a MERS member.
6. WRONGFUL FORECLOSURE: Defendant MERS through their acts and omissions did wrongfully and illegally foreclose upon Plaintiffs and Class Members through the means of a non-judicial foreclosure.
7. VIOLATION OF MICHIGAN CONSUMER PROTECTION ACT: Through their acts and omissions in the commission of their illegal foreclosures, Defendant MERS did violate the Michigan Consumers Protection Act MCL 445.901 et seq.
8. VIOLATION OF THE FAIR DEBT COLLECTIONS PRACTICES ACT: (Federal) The acts and omissions of Defendant MERS involved transactions which were primarily for personal, family or household purposes. In the collection of a debt Defendant MERS did utilize means, methods and conduct which served to harass, oppress and abuse Plaintiffs and Class Members.
   97. In the collection of a debt Defendant MERS did utilize means, methods and conduct which were false, deceptive and/or misleading.
   98. In the collection of a debt Defendant MERS did threaten and utilize unlawful and prohibited actions.
   99. In the collection of a debt Defendant MERS did utilize unfair and/or unconscionable collections means.
   100.    In the collection of a debt Defendant MERS did fail to provide required written notices to Plaintiffs and Class Member.

 [PIERCING OF THE CORPORATE VEIL MIGHT BE VERY EASY IN THE CASE OF MERS, THUS ALLOWING A JUDGMENT AGAINST MERS AND COLLECTION AGAINST THE OWNER-MEMBERS.]

1. ACTION TO SET ASIDE FORECLOSURES AND QUIET TITLE
   DEMAND FOR PUNITIVE DAMAGES:  taking PROPERTY pursuant to foreclosures by advertisement against Plaintiffs and Class Members was unauthorized, without right, illegal and in violation of MCL 600.3201, et seq. Such taking by MERS, or any other party, places a cloud upon the title ownership to the affected real property.
2. ACTION FOR POSSESSION/REPOSSESSION: Any title relative to the affected real property to the mortgagor Plaintiffs and Class Members obtained by MERS, or any other party, pursuant to attendant sheriff sale is void ab initio per the ruling of the Michigan Court of Appeals dated April 21, 2011.
3. INTERFERENCE WITH POSSESSORY INTEREST: Defendant MERS did illegally and without authorization, substantially interfere and negatively affect Plaintiffs and Class Members rights and interest in the affected real property. Pursuant to common law and MCL 600.2918, …. illegal acts and omissions, Plaintiffs and Class Members are entitled to damages in an amount in excess of One Hundred Million Dollars ($100,000,000.00) and possession/repossession of their affected real property.
4. UNJUST ENRICHMENT: Due to Defendant MERS acts of wrongful foreclosure, Defendant MERS has been unjustly enriched through wrongful possession and the receipt of the proceeds of sale of Plaintiffs and Class Members affected real property. Due to Defendant MERS acts of wrongful foreclosure, Defendant MERS has been unjustly enriched by their willful circumvention of the requisite judicial foreclosure process.

Tags: bankruptcy, borrower, CIRCUMVENTION OF JUDICIAL PROCESS, countrywide, disclosure, due process, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, MERS, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee, VOID AB INITIO, WEISBAND, wrongful foreclosure
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