NEVADA BKR JUDGE KNOCKS MERS ON STANDING ON LIFT STAY MOTION

THANK YOU TO Deontos: This is regarding “Standing” to obtain “Relief from Stay”. Riegle concluded MERS lacks “standing”. Stay tuned on this ……. It might
really wreak havoc on the MERS menace in Nevada.

EXCERPTED CASE FILE:

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
* * * * * *
In re ) Case No. BK-S-07-16226-LBR
) Chapter 7
JOSHUA & STEPHANIE MITCHELL, )
)
Debtor(s). )
) DATE: August 19, 2008
) TIME: 3:30 p.m.
________________________________________ )

MEMORANDUM OPINION
Mortgage Electronic Recording Systems, Inc. (“MERS”) through various counsel has filed a number of motions to lift stay. Some of the motions were filed in the name of MERS, 1 while others have been filed in the name of MERS as the nominee for another entity. An order for joint briefing was entered because the substantially same issues were presented in the motions, and a joint hearing was held. Mitchell (#07-16226) has been designated as the lead case. The trustee or counsel for the debtor in these cases has opposed the lift-stay motions on the grounds of standing and that MERS is not the real party in interest.

The initial response filed by MERS contained no evidentiary support. Rather it described the role of MERS and its members by relying on law review articles and the recitation of facts in other cases in other districts involving MERS. Prior to the initial argument, MERS attempted to withdraw the motions filed in all but four of the cases. MERS then filed a declaration at the court’s direction explaining why the motions were withdrawn. The declaration of William Hultman was filed in Dart. The declaration, in addition to explaining MERS’ rationale for 3 withdrawing the motions, also attached as exhibits copies of the MERS Membership Application, the MERSCorp. Inc. Rules of Membership, the MERS Procedural Manual, and the MERS Terms and Conditions of Membership. The court also requested appropriate evidentiary 4 support for the allegations concerning the relationship between MERS and the entities for whom the motions were brought. A supplemental declaration was filed in Michell, the lead case.5 As noted, MERS has attempted to withdraw all but four of its original motions, leaving only Dart (#08-11007), Hawkins (#07-13593), Ramirez-Furiati (#08-10427), and Zeigler (#08- 10718). MERS admits that it failed to follow its own procedures in the motions it wants to withdraw. The debtor, the chapter 13 trustee, and MERS subsequently stipulated to a lift of stay 6 in Ramirez-Furiati which the court approved with the acknowledgment that the order contained no finding about MERS’ standing. This court will discuss the issues raised in the motions that MERS attempts to withdraw, and by this order issues its ruling in Dart and Hawkins, which are 8 the two cases that are now pending before it. 9

The court has advised the parties that it would consider any information contained on the MERS website at http://www.mersinc.org/ unless an objection was made. No objection has been filed by either party. The court thus takes judicial notice of the contents of the MERS website. …………………………..

CONCLUSION
The lift-stay motions in Dart and Hawkins are denied. MERS may not enforce the
notes as the alleged beneficiary. While MERS may have standing to prosecute the motion in the name of its Member as a nominee, there is no evidence that the named nominee is entitled to enforce the note or that MERS is the agent of the note’s holder. Indeed, the evidence is to the contrary, the note has been sold, and the named nominee no longer has any interest in the note.

IT IS SO ORDERED.
Motion

full file:
http://www.nvb.uscourts.gov/Opinions/Riegle/07-16226%20Opinion.pdf

Tags: bankruptcy, borrower, disclosure, foreclosure defense, foreclosure offense, Lender Liability, Mortgage, predatory lending, rescission, RICO, securitization, TILA audit, trustee
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