MERS STEPS CLOSER TO ADMITTING PRIOR FORECLOSURES WERE INVALID

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EDITOR’S COMMENT: I’m not as sure as others that this policy bulletin does much for the borrower. Reading it carefully in the light of existing case law, it does not seem to state anything substantive. Since it is remedial in nature, it is subject to an objection if introduced in evidence under the theory that as a matter of public policy we won’t hold it against a defendant if they take corrective measures. It won’t be considered an admission as to past acts.

BUT the absolute bar to using MERS’ name in foreclosures could conceivably be used to overturn hundreds of thousands of foreclosures. By giving that new instruction as to policy MERS is stating that its action is unilateral. That means that other parties to agreements with MERS did not consent to this new policy and that MERS is simply stating the rules that now apply.

It obviously WAS part of the agreement with the banks that foreclosures could be initiated in the name of MERS. Now MERS is backing out of the deal. While the prohibition against initiating any foreclosure in the name of MERS probably cannot be introduced as evidence as part of a damage claim, it probably can be used as part of a claim in equity where the borrower is seeking injunctive relief — especially if the defendant in the borrower’s claim is not MERS except as a nominal defendant.

The basic argument that comes out of this is that if it is wrong now to do it in the name of MERS because of title problems, then it was wrong before. Tying the policy change to title problems might be harder than most pro se litigants think and perhaps a bit easier than some lawyers might think.

I had the pleasure of listening to a seminar for lawyers who represent banks. The basic thrust of their advice from a tactical point of view is go for the jugular on threshold questions before the Judge gets to hear the egregious facts behind forged and fabricated documents. Attorneys who represent borrowers would do well to heed the same advice. The threshold question in any action for equitable (injunctive) relief is whether there is an existing problem that cannot be solved in any way other than through some judgment issued by the court.

It all comes back down to the issue of title as I wrote about it in late 2007 and early 2008. The ultimate question is whether title is actually and truly clear or if someone is just saying it is clear. THAT is the whole point of recording statutes, county recorder’s offices and public notices (most of which are not posted in foreclosure proceedings, non-judicial and judicial alike). The threshold question of title brings you to the elements of actual title according to the laws of the state in which the property is located. Quote those laws and policies and then show how the current situation does not match up to existing law.

Going after threshold issues makes it easier to get past the motion to dismiss which is a threshold tactic of the other side. THAT gets you closer to discovery and enforcing discovery. Lying on a recorded document is against the law. Any document found to contain materially false and misleading information is going to be struck from the title registry as being an invalid document that was not the proper subject of recording an instrument duly executed and authorized. Once you have successfully attacked the Deed of Trust or mortgage, even before you have actually won the war, you are in the red zone for the banks, where they have no place to hide. They never had title, they never had a perfected lien, the enabling documents used in foreclosure were false, misleading and fraudulent and they knew it.

MERS Policy Bulletin Effective July 2011

http://mattweidnerlaw.com/blog/2011/07/brand-new-hot-off-the-presses-mers-policy-bulletin/
July 24th, 2011 | Author: Matthew D. Weidner, Esq. After years of claiming that assignments don’t matter and the date of assignment certainly doesn’t matter, the MERS Monster has finally changed its tune, effective July 21, 2011:

The Certifying Officer must execute the assignment of the Security Instrument from MERS before initiating foreclosure proceedings or filing Legal Proceedings and promptly send the assignment of the Security Instrument for recording in the applicable public land records

Well, harumph says I…what of all those damn post filing assignments? What about all them specious arguments made in courtrooms all across this country that said the date of assignment didn’t matter? What about the absurd argument that an “equitable assignment” had already occurred? (despite the fact that neither the pooling and servicing a agreement nor law permit such assignments) For foreclosure cases already adjudged this is problematic and for all those hundreds of thousands still pending, this change in policy is exhibit #1 in the argument that a post filing assignment cannot confer standing.

This certainly ain’t “Ding Dong The Witch Is Dead”, it’s just another stanza in “Humpty Dumpty Sat on A Wall”

And all the kings horses and all the kings men couldn’t put Humpty Dumpty back together again.

Humpty Dumpty is our real property recording system that was developed over hundreds of years in this country. A key read is Hernando Desoto’s “The Mystery of Capital” for a long explanation that our country’s success is tied largely to our real property record system that has been completely obliterated in just a few short years by all this mortgage madness. What is most astonishing (and the biggest indictment of the whole MERS madness) is the fact that no law, legislation or court decision was ever rendered to justify the MERS system prior to its widespread implementation. It was merely spread all across this country like a virulent virus that was transmitted and lay dormant in the property records impacting millions of homes all across America.

MERS Policy Bulletin
http://www.scribd.com/doc/60784152/MERS-POLICY-BULLETIN-%E2%80%93-Number-2011-5

Tags: bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, MERS, modification, POLICY BULLETIN, policy bulletin NUmber 2010-1, quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND
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