Saturday, July 23, 2011

UTAH JUDICIARY NEEDS TO GET TOGETHER - ATTORNEY CRAIG SMAY WILL APPEAL TO THE UTAH SUPREME COURT

Utah ruling a setback for foreclosure challenges


A state appeals court decision could have a wide impact on dozens of lawsuits filed in Utah over home foreclosures that washed across the state in the wake of the Great Recession.
The Utah Court of Appeals has agreed with a lower court that a key loan servicer and an entity created by mortgage bankers have the legal right to foreclose on an Eagle Mountain home.
Lower federal and state courts have dismissed numerous foreclosure suits in Utah on the same grounds, but this decision is the first from a higher court, and its ruling may guide future judicial actions. The decision invalidates one of the legal theories that have guided dozens of lawsuits challenging the tens of thousands of foreclosures in Utah.
“This ruling will be brought to the attention of the trial judges in each of those lawsuits, and claims based on the theories rejected in our case should be dismissed,” said Ballard Spahr attorney Tony Kaye, who represented loan servicer CitiMortgage Inc. and Mortgage Electronic Registration Systems Inc. (MERS), a creation of the Mortgage Bankers Association and an actor in many of the foreclosures.
He also said Tuesday he thinks the decision could discourage others from filing lawsuits seeking to nullify trust deeds.
But Craig Smay, the attorney for the homeowner, said he will either ask for reconsideration of the decision or appeal to the Utah Supreme Court.
“Our intention is to not to let it stand. It’s obviously wrong.”
At issue in the case is the role in foreclosures of MERS and those who service loans. MERS was created in the mid-1990s by bankers as a way to register ownership of the mortgage notes in order to facilitate their transfer from an original lender into pools that were then marketed to investors. The system upended parts of the traditional registration of property interests with county recorders.
Story continues below
MERS is listed on tens of thousands of trust deeds — used by holders of mortgage notes to foreclose if a homeowner fails to make payments — as the beneficiary or owner of the notes and also as the agent of the actual owners. As the agent, it claims the right to foreclose when homeowners violate the terms of the mortgage.
But attorneys in Utah and other states have challenged the MERS-related foreclosures, arguing long-established property law requires that only the person or entity holding the actual mortgage loan document can foreclose. They say MERS cannot legally foreclose because it does not have a financial interest in the mortgages or because it cannot prove it is acting as the agent of the pools that actually own the notes.
The Utah Court of Appeals ruled late last week, however, that state law does not prohibit MERS from acting as the agent of the mortgage note holders with the right to foreclose.
Chris Peterson, a University of Utah law school professor and associate dean, said the court did not rule on a very basic standard of traditional property law. Utah statues say the owner of a mortgage note cannot be separated from the deed of trust, and Peterson said MERS is clearly not the owner of such a note.
“We’re talking about basic, ground-level commercial law, and the court of appeals decision doesn’t answer that argument,” said Peterson, who is recognized as a national expert on legal questions related to MERS.
Abraham Bates, an attorney whose firm has filed dozens of suits challenging foreclosures, agreed with Peterson.
“The lender is the beneficiary of a trust deed — MERS is not,” Bates said in an email. “MERS may act as an agent [“nominee”] of the original lender — at the lender’s direction — but cannot validly claim to be the lender itself, as it does in tens of millions of county records across the country.”
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  • CIA_ran_9_11 2 days ago
    Thanks tribune for not reporting the fact that it was only three judges on the court.  Thanks for not reporting WHICH judges.  Thanks for not linking to the decision.
  • CIA_ran_9_11 2 days ago
    To hell with the law, we only rule in favor of the banks.  Welcome to modern amerika. Cowardly and lazy judges are at it again.

    Why are the bankers allowed to do these hyper complex activities that are forms of dishonesty?

    The bankers want it both ways. They want to profit from the mortgage and own the mortgage. They want to be able to say that these third party companies are also owners and beneficiaries, which THEY ARE NOT, they are merely agents, then the bankers want to benefit from this lie by profiting from these third parties selling your mortgage into pools of complex instruments that are actually dishonest. 

    What is wrong with our judges nowadays that everything has to go to the supreme court? 

    This is the relevant item that these awful judges ignored:

    "Utah statues say the owner of a mortgage note cannot be separated from the deed of trust, and Peterson said MERS is clearly not the owner of such a note."

    “MERS may act as an agent [“nominee”] of the original lender — at the lender’s direction — but cannot validly claim to be the lender itself, as it does in tens of millions of county records across the country.”

    State law does not allow the banks to separate themselves from the deed. PERIOD. Putting MERS as the lender is FRAUD and clearly in violation of state law. What part of this do these judges not understand? I think these judges are just massive cowards who are afraid to upset the apple cart so they rule for the status quo, in complete opposition to state law. These judges should be impeached.

    Since I have to do the trubune's job for them, here is the cowardly and incorrect opinion of the appeals court:

    http://www.utcourts.gov/opinio...

    The full appeals court needs to rule on this so we can see if the entire court needs to be impeached. Here are the three morons who currently need to be impeached:

    Davis:
    http://www.utcourts.gov/judges...

    Mchugh
    http://www.utcourts.gov/judges...

    Voros
    http://www.utcourts.gov/judges...
  • login49 2 days ago
    The decision invalidates one of the legal theories that have guided dozens of lawsuits challenging the tens of thousands of foreclosures in Utah.
    And they want to bring in millions of illegals into the system, what a upside down government we have.
  • JanCJoplin 2 days ago


    MERS and all those creative minds behind the
    "conspiracy" must pay.  How?  The foreclosure should be
    found invalid.  Then the true mortgagee re-initiates either a proper
    non-judicial foreclosure process (notice, sale, redemption period) or a
    judicial foreclosure sale or if the security interest is invalid, they can file
    a judicial lien either against the person ("in personum") or against
    the property ("in rem").  No one is getting any free houses out
    of this or are they getting out of their debts.  They will stay in their
    house another 90 days or whatever it takes for bank to do a true and valid
    foreclosure process.  If the courts allowed MERS to be successful in their
    scheme, the very concept and purpose behind our recording laws would be
    abrogated.  Loss of revenue from recording fees, no hard copies on file in
    the recorder’s office so papers could get lost - it would be like allowing MERS
    to flip the finger at the most simple stable practices and security measures
    built into fundamental property law.  

    If folks in the state wanted an electronic recording system they would have
    adopted the "Torrens System" of recording statutes.  Utah
    specifically chose NOT TO ADOPT ELECTRONIC RECORDING.  What was the
    Torrens system and why did it NOT work?  The system was formulated to
    combat the problems of uncertainty, complexity and cost associated with
    old-system title, which depended on proof of an unbroken chain of title back to
    a good root of title - all recorded on paper in the local office.

    The Torrens title system operates on the principle of "title by
    registration" (i.e. the indefeasibility of a registered interest) rather
    than "registration of title." The system does away with the need for
    a chain of title (i.e. tracing title through a series of documents). The State
    guarantees title and is usually supported by a compensation scheme for those
    who lose their title due to the State's operation.  Many states attempted
    the system but quickly eliminated it.  California for example adopted the
    Torrens system of electronic registration.  After one adverse title claim
    wiped out the entire liability fund and the states taxes revenues had to
    support the claim- the people of the state said NO WAY.  There are very
    few states who use electronic registration.  Title insurance is the proper
    place and the proper means to insure against loss and the risk of loss is
    lessened by the good old law - run down to the REAL LIVE BUILDING and record
    THE REAL LIVE PAPERS.

    I hope the Utah Supreme Court upholds the law, if not through the facts of this
    case- in some other manner down the road. 

  • Fitz1 2 days ago
    I am not, and have never been, a fan of MERS.  I have followed MERS for many years and the way they function has always been a concern. 
    But the headline to this story seems to be somewhat misleading.  Having read the Appellate Court decision, I do not see where it hurts foreclosure challenges.  If I read it correctly, it says that the arguments that challenged one particular foreclosure were without merit.  Foreclosures still have to conform to Utah law.  Trust Deeds still need to be recorded in the county where the property is located, notices still need to go out, and the foreclosing entity still has to prove, if challenged, that it is the legal trustee who has the right to foreclose, that the payments are in arrears, and that proper notice and time has been provided.  

    The real issue here is the recording of the Trust Deed in the county where the property is located.  MERS does not typically record legal instruments in the county where the property is located at the time of closing, nor does MERS typically record assignments or other legal documents.  That is the problem, there is no recorded record of who has what rights.  The whole purpose and intent of MERS was to circumvent the recording process with the concept that doing so would save the cost of recording documents in each county every time it was assigned.  We are talking millions of dollars in recording costs across the country.  The Utah statutes require the Notice of Default to cite recoding information on the trust deed such as book and page number.  The Trust Deed has to be recorded in the proper county before foreclosure notices can go out.  Other states have found that MERS cannot produce original Trust Deeds or promissory notes.  And they have found that mortgaging servicing companies wrongly apply mortgage payments and that their records are wrong.  There are documented instances where MERS and the loan servicing companies have foreclosed on properties that were owned free and clear.  

    This post is too long and I apologize.  There are valid challenges to the foreclosure process.  MERS has cost county recorder offices millions of dollars.  MERS has been found to have lost track of records.  MERS and loan servicing companies have been significant contributors to the mess we are now in and to the lack of trust borrowers now have.  MERS and loan serving companies need to be closely scrutinized.
  • gorfmid 2 days ago
    really pay your bills on time and this wouldn't be an issue.  Looks like people are trying t get things from free.  Living in the South (Georgia) we see a lot of this crap.  Grow a pair, man up, pay your bills.

    Additionally, read the fine print in the mortgage documents you sign.  If it looks like a great deal, make sure it is.  Option arms looked awesome, and can be, but they weren't for everyone (even tho that is how they were marketed).  We have a nation of idiots.  

    In short, take responsibility for your actions.  If you signed on a note that was subprime, that is your own frickin' fault.  Man up.
  • realitycheckplease 2 days ago
    Look if you are not paying for your loan, and you default on your mortgage, the home is not yours and you need to leave.  This mess will never be worked out if attorneys and weasels try to get people a free house.  If this was ever green lighted in court do you know would happen to the housing industry and the economy... If this case won the majority of home owners would just stop paying and all hell would break out.  All you people out there that are under water... IT IS NOT YOUR HOME... AT ALL... GET OVER IT.
  • cnmne 2 days ago
    Utah has laws against individuals purchasing a bottle of wine in California and transporting it into the state for personal consumption.

    The State can say all they want about how genius they are at running private business, but it really boils down to the fact that Utah is a "Control State".   With the police to protect their racket and the power to change the laws at any time, Im sure they could run many business profitably....provided you don't count the cost of the bureaucracy to maintain the monopoly.

     In this atmosphere of cutting government, I say everything should be on the table.  If it makes sense, save it.  If it doesn't, cut it.
  • Dr_Sophia 3 days ago
    The biggest single cause of the whole Global Financial Collapse was the belief that clever investment instruments could "eliminate all risk".
    The MERS system was the biggest instrument ever ‘forged’ to deliver “Zero Risk”.
    Tens of thousands of ‘Sub-Prime’ mortgages were bundled into an investment “Instrument”.
    This ‘Instrument’ was divided into 7-10 tranches (Layers)
    If 1000 mortgages default, all 1000 are instantly re-assigned to the bottom Tranche and 1000 other mortgages are moved out of the bottom layer into higher layers. This way, the top few layers cannot end up with any defaults unless over half of the mortgages default. Thus “Zero Risk” is achieved! 
    Those top layers were sold at such incredible prices that the bottom tranches could be retained as ‘junk’.
    It becomes obvious that the only way to instantly re-assign mortgages is by using a computer system (MERS) to keep track of which layers own which mortgages. It is also obvious that you cannot have ANY of this ‘ownership’ information in Ink on Paper!
    The hard-copy ‘Chain of Title’ was deliberately “lost” to allow most of these toxic sub-prime mortgages to be sold as ‘zero-risk’ AAA securities.
  • When I was a rookie trader, a mentoring old pro told me, "Son, there is no new way to make money that you can think of that some *** in New York didn't already figure out 50 years ago and, they  made it illegal 25 years ago."

    Tranched securities weren't new but combining that concept with securitized mortgages and no Glass-Stegal regs, allowed institutional trades my mentor never dreamed of.

    It was the credit reserve swaps, leveraged 50 times over, that did the big damage. That was a brand new way to make money and the Street fed like hogs at the trough. 

    Those boys treated every greenhorn small institution like widows and orphans and packed their ass with sand, as we used to say at the wire house.
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  • ForeclosureEvil 2 days ago
      From  Twitter
    Utah ruling a setback for foreclosure challenges | The Salt Lake Tribune http://t.co/Wm8xh6n via @sltrib
  • Isabel1170 3 days ago
      From  Twitter
    RT @No2HousingCrime: SIDING WITH BANKSTERS: Utah ruling a setback for foreclosure challenges | The Salt Lake Tribune http://t.co/DGIAVIT
  • utahbiznow 3 days ago
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    Utah ruling a setback for foreclosure challenges http://bit.ly/rsYkG9
  • No2HousingCrime 3 days ago
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    SIDING WITH BANKSTERS: Utah ruling a setback for foreclosure challenges | The Salt Lake Tribune http://t.co/DGIAVIT
  • utahnews 3 days ago
      From  Twitter
    Utah ruling a setback for foreclosure challenges: Utah ruling a setback for foreclosure challenges By... http://bit.ly/ngXFCG (SLTrib)



A READER'S COMMENT ABOUT THE RECENT
APPELLATE COURT DECISION IN FAVOR OF MERS


What about RK Arnold and Carson Mullen, President & Vice President of MERS, who stepped down after making millions of dollars screwing people over with their mortgage robo-signing garbage. They both stepped down from MERS, but RK Arnold is doing the same thing under another company name as is Carson Mullen. 
They earned their money and live in huge homes paid for by misrepresenting themselves to homeowners who where not knowledgeable about their underhanded way of doing business.



MY QUESTION IS: HOW MANY PEOPLE IN POWER WHO DECIDE IF MERS AND THE PEOPLE WHO DID THE ILLEGAL ROBO SIGNING WILL BE PROSECUTED HAVE "BENEFITED" FINANCIALLY (WITH THEIR OWN MORTGAGES OR CAMPAIGN CONTRIBUTIONS) BY MR. R.K. ARNOLD AND MR. CARSON MULLEN? 

Would not want anyone who is in Congress or on the Judicial Bench to be embarrassed by being caught having dealings with MERS which may have been legal but still immoral, whose constituents would be upset by special favors and/or huge financial breaks.

I HAVE BEEN TOLD THAT ALL THOSE CONNECTED WITH MERS CLAIM THEY ARE UNTOUCHABLE DUE TO THE PEOPLE THAT HAVE BENEFITED BY SPECIAL CAMPAIGN CONTRIBUTIONS AND UNBELIEVABLE MORTGAGE DEALS, IF THIS IS TRUE, WE NEED A BETTER GOVERNMENT THAN THE TWO PARTY SYSTEM WE CURRENTLY HAVE. IF THIS IS TRUE, WE MUST REALIZE THAT THE TWO PARTY SYSTEM HAS BECOME BOTH LAZY AND GREEDY BEYOND REPAIR. I DO NOT HAVE AN ANSWER TO THE PROBLEM OF OUR GOVERNMENT, BUT I DO KNOW THAT CONTINUED SELF-INTEREST AND PROTECTING THOSE WHO FLEECE AMERICA ARE WRONG AND DO NOT DESERVE OUR VOTES.


Dear Reader:


Amen.  Amen.  Amen.   I could not agree with you more.  I'm sick of the system.


Kelly L. Hansen



Recent Utah Court Decisions re MERS

by Tom Cook
Lundberg & Associates – USFN Member (UT)
Three recent court cases in Utah regarding MERS have resulted in contradictory decisions and are worthy of lender and servicer attention.
 
First case: A case in state court, successfully removed to federal court (Case No. 1:10-cv-00033-CW), was brought by the trustor against MERS, the original lender, the foreclosure trustee, the junior lienholder, and the investor. After the case was removed, a motion for summary judgment was filed. The court decision signed October 19, 2010 held that: (1) securitization of the note did not strip the holder of authority to appoint a trustee and foreclose; (2) the plaintiff failed to meet the requirements of his equitable estoppel cause of action; (3) the Uniform Commercial Code arguments did not succeed where there is a distinct nonjudicial foreclosure statute; (4) MERS has the right “to act on behalf of those parties who have the ultimate right to collect the debt”; (5) MERS has standing as a proper party to the action; and (6) the trustor’s claim of quiet title alleging that no trust deed lien remained attached to the property was insufficient; and, all causes of action against the first position trust deed were dismissed with prejudice.

Second case: A December 16, 2010 decision in a case in Utah’s 4th District Court (a lower state court) reached virtually the identical decision on mostly the same arguments by the trustor. (Case No. 100403141; no further citation is available for a Utah lower court decision). The following statements from the decision define the court’s opinion of this type of action against MERS: “The court concludes that MERS has standing to serve as beneficiary and to appoint a successor trustee. The court further concludes that the plaintiffs (trustor) consented to MERS as beneficiary with the power to foreclose on the plaintiffs’ property.”
 
The significance of the cases discussed above is that the court recognized the authority and standing of MERS and, in the first case, struck down an attempt to quiet title. The following case has the opposite result.
Third case: A case for quiet title was filed to clear title to a property with a recorded trust deed that named MERS as the beneficiary. The trustor purposely kept the loan current during the pendency of the litigation to avoid any unwanted documents, such as a substitution of trustee or notice of default, being recorded with the county recorder. The lawsuit named and served only the original lender and the original trustee on two recorded trust deeds. MERS, as the original beneficiary, was intentionally omitted as a party defendant. The attorney also had the ability to determine the entity to which the trustor was making payment and failed to name that party.

All served parties failed to answer or disavowed any ongoing interest in the property. The court entered default judgment and quieted title to the property in the plaintiff without ever having a hearing or questioning the list of defendants. The trustor sold the property clear of the trust deeds and thereafter stopped making payments. The extinguished senior trust deed has now been referred for foreclosure. The question is: what is left to foreclose? It appears that this action may result in protracted and costly litigation.

The attorney in this third case allegedly claims the same result in two other cases. Moreover, another attorney has apparently jumped on the band wagon, contending the same success in a similar case. Both purport to have a number of these cases pending and are obtaining many new clients for the same action. An article was published in the Salt Lake Tribune about these actions and MERS on January 15, 2011, and updated the next day. The newspaper’s website is accessible here; find the referenced article by using the search term “MERS.”
© Copyright 2011 USFN. All rights reserved.


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