Wednesday, August 3, 2011

OLD CASE, BELLISTRI v OCWEN, MERS HAS NO STANDING, SPLIT NOTE AND MORTGAGE

New MERS Standing Case Splits Note and Mortgage: Bellistri v Ocwen Loan Servicing, Mo App.20100309

Posted on April 20, 2010 by Neil Garfield
From Max Gardner – QUIET TITLE GRANTED
Bellistri v Ocwen Loan Servicing Mo App 201003091 "MERS has no standing"

Mortgage Declared Unenforceable in DOT Case: NOTE DECLARED UNSECURED

“When MERS assigned the note to Ocwen, the note became unsecured and the deed of trust became worthless”
Editor’s Note:
We know that MERS is named as nominee as beneficiary. We know that MERS is NOT named on the note. This appellate case from Missouri, quoting the Restatement 3rd, simply says that the note was split from the security instrument, and that there is no enforcement mechanism available under the Deed of Trust. Hence, the court concludes, quiet title was entirely appropriate and the only remedy to the situation because once the DOT and note are split they is no way to get them back together.
NOTE: THIS DOES NOT MEAN THE NOTE WAS INVALIDATED. BUT IT DOES MEAN THAT IN ORDER TO PROVE A CLAIM UNDER THE NOTEOR TO VERIFY THE DEBT, THE HOLDER MUST EXPLAIN HOW IT ACQUIRED ANY RIGHTS UNDER THE NOTE AND WHETHER IT IS ACTING IN ITS OWN RIGHT OR AS AGENT FOR ANOTHER.
The deed of trust, …did not name BNC [AN AURORA/LEHMAN FRONT ORGANIZATION TO ORIGINATE LOANS] as the beneficiary, but instead names Mortgage Electronic Registration System (MERS), solely as BNC’s nominee. The promissory note does not make any reference to MERS. The note and the deed of trust both require payments to be made to the lender, not MERS.
a party “must have some actual, justiciable interest.” Id. They must have a recognizable stake. Wahl v. Braun, 980 S.W.2d 322 (Mo. App. E.D. 1998). Lack of standing cannot be waived and may be considered by the court sua sponte. Brock v. City of St. Louis, 724 S.W.2d 721 (Mo. App. E.D. 1987). If a party seeking relief lacks standing, the trial court does not have jurisdiction to grant the requested relief. Shannon, 21 S.W.3d at 842.
A Missouri appellate court, without trying, may have drawn a map to a defense to foreclosures-if borrowers can figure it out before the Missouri Supreme Court overturns the decision in Bellistri v Ocwen. The opinion shows how an assignment of a loan to a servicing company for collection can actually make the loan uncollectible from the mortgaged property.
This case concerns the procedures of MERS, which is short for Mortgage Electronic Registration Service, created to solve problems created during the foreclosure epidemic of the 1980s, when it was sometimes impossible to track the ownership of mortgages after several layers of savings and loans and banks had failed without recording assignments of the mortgages. The MERS website contains this explanation:
MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans.
MERS is the named mortgage holder in transactions having an aggregate dollar value in the hundreds of billions, and its service of providing a way to trace ownership of mortgages has played a large role in the securitization of mortgages and the marketability of derivative mortgage-backed securities, because it seemed to eliminate the necessity of recording assignments of mortgages in county records each time the ownership of a mortgage changed, allowing mortgage securities (packages of many mortgages) to be traded in the secondary market, with less risk.
This case began as a routine quiet title case on a collector’s deed, also known as a tax deed. Following the procedure by which people can pay delinquent property taxes and obtain the ownership of the delinquent property if the owner or lien holder fails after notice to redeem, Bellistri obtained a deed from the Jefferson County (Mo.) collector.
Because of the possibility of defects in the procedures of the county collectors and in the giving of proper notices, the quality of title conferred by a collector’s deed is not insurable.
A suit to cure the potential defects (called a “quiet title suit”) is required to make title good, so that the property can be conveyed by warranty deed and title insurance issued to new lenders and owners. The plaintiff in a quiet title suit is required to give notice of the suit to all parties who had an interest in the property identified in the collector’s deed.
A borrower named Crouther had obtained a loan from BCN Mortgage. The mortgage document (called a deed of trust) named MERS as the holder of the deed of trust as BCN’s nominee, though the promissory note secured by the deed of trust was payable to BCN Mortgage and didn’t mention MERS.
Crouther failed to pay property taxes on the mortgaged property.
Bellistri paid the taxes for three years, then sent notice to Crouther and  BNC that he was applying for a collector’s deed. After BNC failed to redeem (which means “pay the taxes with interest and penalties,” so that Bellistri could be reimbursed), the county collector issued a collector’s deed to Bellistri, in 2006.
Meanwhile, MERS assigned the promissory note and deed of trust to Ocwen Servicing, probably because nobody was making mortgage payments, so that Ocwen would be in a position to attempt to (a) get Crouther to bring the loan payments up to date or (b) to foreclose, if necessary. But this assignment, as explained below, eliminated Ocwen’s right to foreclose and any right to the property.
Bellistri filed a suit for quiet title and to terminate any right of Crouther to possess the property. After discovering the assignment of the deed of trust to Ocwen, Bellistri added Ocwen as a party to the quiet title suit, so that Ocwen could have an opportunity to prove that it had an interest in the property, or be forever silenced.
Bellistri’s attorney Phillip Gebhardt argued that Ocwen had no interest in the property, because the deed of trust that it got from MERS could not be foreclosed. As a matter of law, the right to foreclose goes away when the promissory note is “split”  from the deed of trust that it is supposed to secure. The note that Crouther signed and gave to BNC didn’t mention MERS, so MERS had no right to assign the note to Ocwen. The assignment that MERS made to Ocwen conveyed only the deed of trust, splitting it from the note.
When MERS assigned the note to Ocwen, the note became unsecured and the deed of trust became worthless. Ironically, the use of MERS to make ownership of the note and mortgage easier to trace also made the deed of trust unenforceable. Who knows how many promissory notes are out there that don’t mention MERS, even though MERS is the beneficiary of the deed of trust securing such notes?
O. Max Gardner III
Gardner & Gardner PLLC
PO Box 1000
Shelby NC 28151-1000
704.418.2628 (C)
704.487.0616 (O)
888.870.1647 (F)
704.475.0407 (S)
Next Boot Camp:  May 20 to May 24, 2010
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35 Responses

  1. myegy ماى ايجى, on May 3, 2011 at 2:19 pm said:
    My case is really very simple: the servicer, who is not the noteholder, calls itself “MERS” for the sake of executing an assignment of the note/deed to itself. It is legally impossible for the servicer–who is not a noteholder–to do this (because, among other reasons, the mortgage follows the note–which the servicer admits to not having). But it has inexplicably become Fannie Mae’s new policy as of May 1.http://m-yegy.blogspot.com
  2. latest pc games, on April 26, 2011 at 5:16 am said:
    I have a fraudulent loan with BOA as servicer. BOA transferred my loan to BAC Home Loan Services, formerly Countrywide. BAC Home Loan informs me that the new creditor is CIG HFI Mortgage. Has anyone ever heard of this creditor? Thanks. my blog usagamezone.blogspot.com
  3. Angela, on March 30, 2011 at 3:49 pm said:
    Can I sue MERS for lost of title and wrong mortagage notes? I have had my home since September 2003 in Los Angeles California, I am current on my mortgage notes and all taxes.. Recently I requested my Tittle/Deed of Trust from Citimortgage and it appears that they are stalling they have been sending everything except what I asked for. The original mortage company was Suntrust, I then refinanced with Citimortgage. I had a friend who is a realistate agent to request the tittle and what he found was all of these what he called Gapps in the Notes and Tittle following the original Tittle/Deed of trust from Septenber 2003.. So I am trying to see if I need an attorney and if so on what grounds can I sue MERS and what would be the benifit.. This is all confusing.
  4. Ransom, on June 6, 2010 at 11:37 am said:
    How to Beat A MERS Foreclosure By Their Own Rules!
    Okay, the majority of foreclosures typically has Mortgage Electronic Registrations Systems, Inc involved known throughout the nation as MERS. So how do you beat a MERS foreclosure in their name? Yep, MERS is seriously foreclosing on homeowners in their name representing that MERS is the creditor.
    First off, is MERS your creditor? No matter what they SAY did you sign a contract directly with MERS? NO YOU DID NOT ! Hence the term Nominee !!
    This is what MERS says on their website:
    “In mortgage foreclosure cases, the plaintiff has standing as the holder of the note and the mortgage. When MERS forecloses, MERS is the mortgagee and it is the holder of the note because a MERS officer will be in possession of the original note endorsed in blank, which makes MERS a holder of the bearer paper. MERS will not foreclose unless the note is endorsed in blank and held by MERS.”
    OMG! Are they really serious?
    So one might first wonder is MERS a holder in due course of this original note endorsed in blank? NOPE!
    In non judicial states if you challenge MERS the foreclosure process becomes a judicial foreclosure process. In judicial states MERS has to go through the courts to foreclosure. Either way they must prove their standing to foreclose. Or as they put it “MERS officer will be in possession of the original note endorsed in blank, which makes MERS a holder of the bearer paper.”
    Hence the challenge “Produce the Note”.
    If a mortgage has an Assignment (likely FAKE) but still if a mortgage has a recorded Assignment it means that the foreclosing creditor should be the owner of the Assignment !! Hence NOT MERS foreclosing in their NAME !!!
    Now MERS says, “MERS will not foreclose unless the note is endorsed in blank and held by MERS.”
    Examine the Assignment it likely SAYS that MERS transferred the NOTE !! Which by the way they likely had no authority to do so but did anyways. Leaving the most wonderful paper trail on earth.
    What remains is an unsecured NOTE (Your Home) and a transferred Deed of Trust or Security Deed (Your Debt) attached to NO Asset (Foreclosure Worries Home FREE).
    However, if MERS is NOT challenged they carry out this illegal foreclosure scheme everyday. You can beat foreclosure by challenging the mortgage lender right to foreclose when you educate yourself.
  5. BofA, on June 4, 2010 at 7:43 pm said:
    HELP HELP HELP- anyone with any written documents from BofA or BAC stating CIG HFI 1st Lien Mortgage is the investor of there loan….I please need them for my BofA lawsuit. They are saying CIG HFI 1st Lien Mortgage does not exist. Please help and email them to opgc2010@gmail.com
  6. Nov 3, Free Installment Promissory Note | US TOP NEWS, on April 23, 2010 at 12:49 pmsaid:
    [...] New MERS Standing Case Splits Note and Mortgage: Bellistri v Ocwen … [...]
  7. Anonymous, on April 23, 2010 at 12:05 pm said:
    So the banks who have NO STANDING are UNSECURED CREDITORs, trying to take possession of property as if they are a secured creditor.
    All of these foreclosures from banks and mortgage servicers and MERS, was a process to “steal” property while they were “unsecured creditors” and then through a series of paperwork filings, they were able to change their status, show ownership of title, and in the eyes of commerce became “secured creditors” after the sale/foreclosure/possession. Their profits are stolen and their businesses are based on theft of someone’s property. Fed bought some bonds to probably try to hide the lack of money coming into the market, and then said they were going to sell it as if the person who buys what the sell is getting a good deal.
    The bankers (who) can be sued for violating FDCPA.
    The Attorney, the servicer’s (owner/president)? Who is the guilty party when someone decides to follow through on this? We’ve proven there is no ‘real party of interest’. So who? The employee who works in the collections department whose job it is to start the process for foreclosure and issue bank funds to an attorney?
    Who?
    But the Supreme Court doesn’t seem to address that when they have changed their status to ‘secured creditor’; how do you prove that they did not have standing prior to all of this maneuvering that has already been done and all the people that have already harmed?
    What happens to the people prior to this decision? They have paperwork to support the run around and the claim of fraud – should they start filing class actions to get their homes back?
    The NOTE and the Deed of Trust had been bifurcated!
    But after a foreclosure, is the ‘pretender creditor” required to keep the paperwork for any length of time that will show they ‘never had standing’ to do what they just did?
    I don’t know whether the court keeps Notice of Trustee Sales around long. They drop off on the internet the next year when that months filings are being accepted.
    The only evidence of the sale if that is the old Deed of Trust still open and without a Release of Lien or assignment and the Trustee Deed that was filed on or after the date of the foreclosure (judicial or non-judicial).
    And the Unlawful Detainer someone may have been served.
    There seems to be a jagged paper trail leading up to the fraud, and an even more jagged one after the fraud has been committed. (The paper trail still exists though)
    I may be missing something.
    If a non-judicial foreclosure is ‘evidence of the fraud’ then we have a trail by mere fact there was no court case attached to the filing of the Trustees Deed in Public Record, and the Trustee’s Deed filed refers to a property that has an unreleased Deed of Trust showing the true owner of the property. If a person had standing, they could close out that Deed and show it satisfied by the sale of the property.
    If a judicial foreclosure took place, is the ‘evidence of the fraud’ the Lost Note Affidavits that may have been filed into evidence?
    Couldn’t the fraud be in regards to the inordinate amount of ‘lost note affidavits’ filed in the past judicial foreclosures by the same business who says they have a secured interest in taking possession of something they own?
    A business who fails to have the proper documents they agreed, by contract, to hold; has voided the contract anyway, through failure to perform. How can they get unjust enrichment and own the home, when they failed to show they had the paperwork to enforce their claim?
    Being facetious – (joking and not serious)
    Why couldn’t a homeowner file a Lost Payment affidavit and say they paid but don’t have any canceled checks or any other proof it was paid but by affidavit they are telling the truth the debt was satisfied when they signed the promissory note, the bank took the note, created an account, typed in the amount of the Note (thereby creating the funds, never lending any money, never providing any consideration – it’s void contract with no full disclosure and no consideration), and paid the home with the money that was ‘given to them’ in the promissory note. The bank sold the note..got paid..became unsecured creditors because the Note and Deed was supposed to stay together (bifurcated the Note and Deed), kept the account open (it’s an invalid account now), set up a servicing agreement and let some other entity demand money via mail (mail fraud) of monthly payments monthly (RICO, extortion/racketeering) or threaten to take the home ( violation FDCPA, threatening to take possession of your property while in violation of the other provisions of FDCPA), won’t show standing “exhibit the note” (violation of UCC 3-501), Use an attorney, (to represent and shield the activity plus unlimited supply of easily created money/funds being a bank/servicer), steal the home (from homeowner and the holder of the promissory note – via foreclosure with no right to possess the property), file some papers (Trustee Deed) post profits as if they are a legitimate business, issue bonuses based upon the theft of the property obtained as assets and not liability on their books, and then can do this all over again.
    Boy do they have it good.
    And who said this was ‘our’ government when this can happen to the people?
    Our education system left out the fact that a true “government of the people” would ‘not’ have let this happen. We may need to find out what else is ‘not true’ about what we’ve been told and sold.
    All I know is I was told the government belonged to the people. But what I see says I was told a lie.
    Another Wizard where the curtain is being pulled back and I can see it is not what I was told it was.
    Dorothy was told a lot of things and she believed them.
    Toto showed her what she ‘believed’ was not true and the people that told her such things were repeating what they had heard, they did not speak from actual knowledge.
  8. Anonymous, on April 23, 2010 at 9:47 am said:
    Now we are ‘talking’ – Supreme Court Decision article dated 4/21/2010
    “Debt Collectors Can Face Lawsuits for Mistakes, Court Says”
    a short description of the case
    The Supreme Court Wednesday made it easier for consumers to sue debt collectors for sending erroneous collection notices.
    7-2 opinion by Justice Sonia Sotomayor, ruled that debt collectors can’t shield themselves from such lawsuits by arguing that they made a legal error when sending a collection notice.
    An Ohio law firm initiated foreclosure proceedings on behalf of Countrywide.
    Homeowner, disputed that the debt existed.
    Countrywide later acknowledged that Homeowner had in fact paid the debt.
    The law firm withdrew the foreclosure lawsuit.
    Homeowner sued the law firm.
    Argument was that it violated federal debt-collection law by stating in its foreclosure suit that “homeowner” alleged debt would be assumed to be valid unless “””she “”” contested in writing.
    A lower court agreed with omeowner that the firm violated the federal Fair Debt Collection Practices Act.
    Lower court also ruled that the law firm was shielded from liability, because, the violation wasn’t intentional.
    The Supreme Court, ruling that Congress hadn’t explicitly provided a mistake-of-law defense to debt collectors.
    The case is Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, 08-1200.
  9. zurenarrh, on April 22, 2010 at 8:23 pm said:
    Anonymous,
    Again–very nice. I’ve had those exact thoughts about my own case–in a lot of ways my case is different from those I read about here and other places; then again, in a lot of ways it’s very similar. TILA, RESPA, and so forth are not my strongest argument. I’ve got fraud, breach of fiduciary duty, breach of contract, cloud on title, FDCPA violations, etc.
    My case is really very simple: the servicer, who is not the noteholder, calls itself “MERS” for the sake of executing an assignment of the note/deed to itself. It is legally impossible for the servicer–who is not a noteholder–to do this (because, among other reasons, the mortgage follows the note–which the servicer admits to not having). But it has inexplicably become Fannie Mae’s new policy as of May 1.
    By the way, I called the servicer on this in my complaint, and the servicer admitted in its answer that Fannie Mae, not the servicer, holds the note. Again, I’ll echo Dana Carvey doing Johnnie Cochran: “Your honor, why we even havin’ a trial?”
    By the way, I’m in this thing pro se now. It was the only option for me, short of bankruptcy (don’t have debt problems other than this, though). So I’m fighting the biggest bank in the country in federal court on my own–not because I think it’s necessarily the best option, but because I’m an attorney I can afford ;-) and I don’t back down when I know I’m right..
    But pro se isn’t the worst option, either. The worst option would be just throwing up my hands and letting them have their way with me. And I’m not doing that–it’s like I tell my young son about his baseball games: “Even if you think you’re going to lose, or you ARE losing, STAY IN THE GAME–you never know when the other side is gonna make a stupid mistake or lose its endurance; you always have a chance of winning as long as the clock’s still running and you’re still in the game!”
    Even if I lose, I’ve already won–I stopped the sale with a TRO. My son got to start and will soon finish the school year at the school that’s just a block away from our house. I have the satisfaction that a letter from the trustee regarding the impending foreclosure said that “we expect that we will take possession of the house in 60-90 days”–and that was 300 days ago!
    What I’ve learned, through this experience and others, is that you can’t win if you don’t fight and that these giant banks and law firms are really nothing more than paper tigers. If you play their game their way, then they’re unbeatable. But their game is, like Anonymous said, to have you treat them as the Wizard even though you’ve seen the old man that sits behind the curtain (Living Lies is Toto, to continue the Baum analogy). Their game is based on flash and fakery–but if you treat them like what they are, i.e., no better than street thugs, then suddenly you’re playing your own game, and they’re no good at your game, which is called “Pay Attention To The Man Behind The Curtain.”
    Resistance IS victory!
  10. Anonymous, on April 22, 2010 at 7:00 pm said:
    In the process of dealing with this fraud. You may raise an argument that doesn’t need to be raised.
    At any time that you recognized these people as a lender, a creditor, or a person who you’ve contracted with, you make your defense harder and your claim more difficult to protect.
    A contract can be entered into by spoken word, written word, or even a gesture (handshake, shaking your head ‘yes’).
    When you answer these people remember this;
    A case is as strong as its weakest point.
    You can fuss about the securitizations and the CDOs and the other investors and the trusts and anything else out there and whether they foreclosed on other people or whatever.
    Basic defense. Do they have standing to foreclose?
    What does your contract say? Some peoples contract says they can sell the note to investors…if that’s the case you are arguing the wrong thing. Some peoples contracts allow for a substitute trustee to foreclose…if you argue that you are arguing the wrong thing.
    I believe (I know nothing, so everything it is based on belief) I believe, some of you fail in your remedy because you are still seeing a Wizard, or you didn’t take notice when it happened to someone else, (because it wasn’t happening to you), and now that it’s happening to you, you will throw everything you have at it and ‘hope’ you win.
    If I argue with you about not baking the cake at the right temperature and you defend yourself by telling me how many eggs you put in it, and that you added water, and that you greased the pan…wouldn’t it occur to me that you don’t know what you are talking about? As soon as you open your mouth; I know that you don’t know what you are doing and that you are defending yourself without understanding the charges I brought against you.
    Will you win your case with your defense? No!
    So go back. Read your Deed of Trust and your Mortgage. Yes. Read it.
    It has definitions…it defines you as a Borrower…so don’t go to court telling them you are the original Creditor! You agreed to be defined as a borrower. It has a Lender…your contract is with an entity…who are they? What agreement did you have? I don’t care if they sold the note later on…what agreement did you have that day?
    Mine said the could sell, transfer, or assign interest or partial interest in the Note, but it said the Deed of Trust must accompany it. New_bank_shows up and demands money! Where’s the assignment?
    I’m not going to make a big deal, but I know the contract I got into.
    If you can find they did not keep their end of the bargain, they ‘breached the contract’ or ‘breached the trust’. Plain and simple. Why throw all that other stuff in there.
    Who would rescind a signature from a business who was never ‘defined’ in their Deed of Trust as a Lender?
    Old lender went bankrupt, went way, merged, etc.
    New_Bank_shows up and demands money! My Deed or Mortgage has a definition..your name is not defined as the Beneficiary…so unless you have the original to re-record the document…then the Beneficiary in my contract has ‘aborted their claim’. I don’t recognize you…who are you? As soon as you recognize them in your ‘fight’ then you have to defend why you haven’t paid them!
    If we sign a contract to paint my house white and you paint it green, do I still owe you?
    Stop being clouded by all the information.
    Each of you will have to settle your situation on your own. There is no ‘cookie cutter’ solution.
    What’s wrong with your case…what’s the weakest link.
    Identify it…they broke the contract..they are not even in the contract…they can’t take over the contract…whatever it is..and that’s your claim and you stick with it.
    You aren’t attorneys. I see people trying to file things like an attorney would…and if a court called you out on your filing can you support it or back it up? Can you submit an answer with the same ‘attorney quality’ as your initial claim. These same people complain that pro se shouldn’t be held to the same standard as an attorney.
    A court knows when they are dealing with an attorney and when they are dealing with ‘real people’. Stay real. Stick to what is true. The word ‘attorney’ is a deviant of the word attorn – in a legal dictionary it means ‘to turn over’…so they will turn over anything you tell them or take things and twist and distort it, AND they have a license to do it; AND they have an organization by membership (BAR) that protects them. I don’t see any criminal charges for all of this work they do for a client..because they aren’t doing it for themselves, they are ‘representing’ someone.
    The people winning each case, did something different from the ‘sheeple’. YOU will have to save yourself if you want your freedom from this mess. You will have to let your heart beat, take your first leap, and learn from your mistakes to find your remedy. This is your ‘catalyst’ to bring you into action for your own salvation and remedy. Help the other guy, but realize your remedy is unique for you.
  11. Sparky, on April 22, 2010 at 2:10 pm said:
    Garcia,
    She has nothing to do with either entity on the assignment. Therefore, the document is not legal and by signing it and submitting it to the court, fraud has been committed.
    I would be like me selling you a car and you don’t sign the title. Then, you sell the car to someone else and they don;t sign the title.
    Who owns the car. Technically, I still do.
    That is what MERS does. Your orignal mortgage was sold to who knows who. ERS keeps the not “open” and sometime, say when they are trying to foreclose on you, magically, thre is an assignment to whoever is trying to sue you.
    I don;t know if you filed your answer yet, but, an answer is simply your response to the charges brought by the plaintiff.
    It is answered three ways. You either agree, deny, or are without knowledge to each count.
    The other thing that you include wit the answer is an affirmative defense.
    That is where you make accusations as to what you think the plaintiff has done wrong.
    That is where you will have thins like, “the plaintiff is not the holder in due course” the plaintiff has not shown a proper chain of custody”, etc.
    What state are you located in?
  12. vegasguy, on April 22, 2010 at 9:25 am said:
    Hmmm…..I don’t read this the same way. Yes, MERS tried to assign the note….but it was in the verbiage that when it assigned the deed of trust, the note would be assigned with it.
    This case actually makes it sound like all transfers of the note have the deed accompany them. See p. 6. After that great paragraph about the note being split from the deed, the very next paragraph seems to say that they will never be split.
    Of course, this could invalidate any and all transfers of the deed by the so-called “beneficiary” after the note has been transferred….but the bad news would be that the note holder is always the holder of the deed as well, and they are not split. They would have authority to demand payment and foreclose, and the mortgage payments would be credited to the mortgage (something I believe cannot happen when they are split).
    Am I missing something here?
  13. A.Garcia, on April 22, 2010 at 7:56 am said:
    What about this…. the banks are “Members” of MERS. When the bank gives power of attorney to whomever they need to get the assignment done. The person with the power of attorney is in their right to sign the assignment . Is this correct ? I was reading the MERS rules for their members and that is how I arrived at that. Am I wrong ? I hope I am. Can someone please simplify/correct what I’m trying to say.
    Thanks.
    http//www.mersinc.org/files/filedownload.aspx%3fid=172%26table=ProductFile
  14. brian davies, on April 22, 2010 at 6:25 am said:
    Sparkey,
    I was just studying that last night and you are right she works in the Indmac Mortgage Services, Onewest Division in Austin.
    Are you saying because she is not an officer for Universal American Mortgage Company of California as nominee?
    Are you thinking additionally she signed as authorized signatory for Universal American Mortgage Company without attached docuements?
    Or is it simply wrong for other reasons?
    Brian
  15. zurenarrh, on April 21, 2010 at 7:34 pm said:
    Money quotes from the Bellistri decision:
    “MERS could not transfer the promissory note; therefore the language in the assignment of the deed of trust purporting to transfer the promissory note is ineffective.”
    “MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force.”
    This is exactly what happened to me. A document called “Corporation Assignment of Deed of Trust/Mortgage” purported to assign the deed and note from MERS to BAC Home Loans Servicing. Meanwhile, Fannie Mae simultaneously claimed to own the loan on its Loan Lookup tool and BAC admitted that Fannie Mae held the note when I sued BAC. Now more than half a year after the bogus assignment, Fannie Mae still says it owns the loan when you look at the Loan Lookup tool.
    Case closed; game over–BAC loses! It’s a no-brainer. I’m reminded of Dana Carvey’s impression of Johnnie Cochran–”Your honor, why we even havin’ a trial?”
    The mortgage follows the note. The mortgage follows the note. The mortgage follows the note. He who has the note has the mortgage by definition. And in my case, both Fannie Mae and BAC admit that Fannie Mae holds the note, not BAC, the crooks trying to steal my house!
  17. brian davies, on April 21, 2010 at 6:16 pm said:
    MERS slide show detailing its function.
  18. Sparky, on April 21, 2010 at 11:45 am said:
    Brian,
    This may be something else for your to research.
    The signer for MERS on your assignment is: Suchan Murray
    This is most likely who that is:
    From Linkedin page:
    Suchan Murray
    Austin, Texas Area
    * Contact Suchan Murray
    * Add Suchan Murray to your network
    Current
    * Bankruptcy Supervisor at One West Bank (fka Indymac Federal Bank)
    Past
    * Mortgage Loan Consultant at DHI Mortgage
    * Mortgage Loan Processor at Ameriquest Mortgage
    * Private Mortgage Insurance Processor at Fairbanks Capital
    Education
    * The University of Texas at San Antonio
    Connections
    68 connections
    Industry
    Banking
    I am not certain if this is 100% accurate, but if it is, the assignment is false and there are many of those around these days.
  19. brian davies, on April 21, 2010 at 9:59 am said:
    CLOSER
    NOW MOTION FOR EVIDENCE HEARING IN CALIFORNIA SET FOR 4-26-10.
    COMMENTS WELCOME
  20. zurenarrh, on April 21, 2010 at 9:12 am said:
    Anonymous–you RULE!! You nailed it on every point. The answer is to not follow their system, because their system is designed for oppression. Just remember the one line for which Rage Against The Machine will be immortal: “fuck you, I won’t do what you tell me.” Or the Alex Jones maxim: “resistance IS victory.”
    They can only get away with what we allow them to get away with. We are not slaves!! Don’t be “reasonable”–be a force to be reckoned with. Match their chutzpah with your own. Don’t be ashamed–as Neil says, you don’t owe the money. They’re wrong and we are right…
  21. susan, on April 21, 2010 at 9:05 am said:
    To Kathi Sharpe
    I’m looking for an attorney who gets it in AZ too – Phoenix area.
  23. Anonymous, on April 20, 2010 at 8:07 pm said:
    Are you paying attention?! See the court case quoted above?
    If a party seeking relief lacks standing, the trial court does not have jurisdiction to grant the requested relief. Shannon, 21 S.W.3d at 842.
    Why do you care that a particular ‘state’ like Arizona doesn’t get it?What’s the worst that can happen in a judicial foreclosure if you can’t find an attorney? You must respond! Respond to the court with an answer?
    Silence is Acquiescence.
    I remember a divorce attorny once, telling me he was surprised my ex-spouse did not respond to the divorce. I told him, I’m not going to stay with him, what difference does it make if he answers? He said, He should answer.
    He can just say, I Love Her. but at least he answered.
    At least send a note to the court, refer to the case and tell the court
    ———————–
    “I don’t have an attorney, I don’t recognize the entity has having standing to bringing the suit,
    If a party seeking relief lacks standing, the trial court does not have jurisdiction to grant the requested relief. Shannon, 21 S.W.3d at 842.
    I believe the ‘Real Party of Interest’ is not bringing this suit.
    upon proof that the court has jurisdiction in this matter, I’d request a ‘special appearance’ to answer the charges.”
    ——————
    The court must prove they have subject-matter jurisdiction over this matter before they can proceed. If there is no jurisdiction, there is no case. On top of that the entity bringing the suit if it lacks standing to collect the debt or even foreclose, there again, there is no case.
    So send your answer; sit back and wait on an answer.
    Some cases can be won without ever going to court, I’ve witnessed that. If they send you something…send something back!
    Now non-judicial foreclosure? They are standing outside! Outside! What’s legal about a transaction done in the public? It could be done in a park or at a zoo! But they go to the court to ‘try’ to make it seem real! If they try to get you to leave your home; where’s their proof they they owned it in the first place? Wouldn’t they have to take you to court to prove it’s their property and to get you to leave?
    I’s one of those,
    Rule #1 – I may not always be right but I’m never wrong.
    Rule #2 – If I am proven wrong, see Rule #1.
    Bottom line. Rule #1. They take it to court. You submit an answer. Challenge the jurisdiction of the court to hear the case, then challenge the entity bringning the suit based on lack of standing. Quote the court case above. Tell the court if they have jurisdiction you request to appear by ‘special appearance’. (Then you can appear in court without an attorney)
    Rule #2 If they “foreclose’ outside. I don’t care if it is on the court steps, or by a court door. They have nothing!
    They proved nothing. So they get nothing. If they try to force you out of your home, call the police on them for trespassing. If they take you to court to take your home, see Rule #1.
    It’s not complicated.
    We have been hoodwinked! We were tricked into believing things based on all the noise in the media and in the early court decisions.
    If I were a judge, I’d wonder why so many of you “are_still” ‘seeking answers’ to a problem that is already solved!
    What does it take for you to “know” the answer!
    You ‘believe’ so much more! Your belief system has you trapped! Why are you so afraid?
    The wizard has been exposed! The curtain is pulled back! And you are still wanting the wizard to have the powers you thought he had – when you thought he was more than he really is!
    If you don’t know what to do with all the information livinglies is posting and 4closurefraud is posting..then I guess your lack of knowledge will cause you to lose your home.
    You have to save yourself at some time!
    Most of you want the case done pro bono!
    This is a problem where YOU – provide the solution.
    Speak for yourself for a change.
    In The Matrix (movie), they shot Neo with bullets and he came to the realization that what was happening to him was ‘not real’. He realized that because he believed it was real, the believed real harm had happened to him. He thought he was dead! Then he finally stood up. It wasn’t easy. He faced them and said, “No.” and showed them he had the power over his own destiny.
    You comply with everything someone tells you to do.
    You are good little sheep walking to slaughter.
    You are looking for a lead sheep to get you out of the line.
    Attorneys and judges are part of the same BAR.
    I read an article where a third year law students found an answer. This is ‘before’ they take the oath to become attorneys.
    Stop looking to them for your answer. It could be you can’t find one to help you because their oath prevents them from taking your case!
    Notice it’s specialty law groups or individuals, that are fighting this successfully.
    Open your eyes…look deeper…see the truth…
    Revelation 18:4
    And I heard another voice from heaven, saying, Come out of her, my people, that ye be not partakers of her sins, and that ye receive not of her plagues.
    Come out of her!
    There is no answer for you their way, in their system.
    You push the square peg into the round hole and wonder why it won’t fit!
  25. New MERS Standing Case Splits Note and Mortgage: Bellistri v Ocwen … | home-loan-lawyer, on April 20, 2010 at 1:35 pm said:
    [...] post: New MERS Standing Case Splits Note and Mortgage: Bellistri v Ocwen … Share and [...]
  26. TNL, on April 20, 2010 at 12:58 pm said:
    We need a ruling like this in the First District of Florida.
  27. Kathi Sharpe, on April 20, 2010 at 12:22 pm said:
    And the point being. Yes, will all of the forensic work being done and the rulings and decisions that continue to prove fraud by everyone involved………….you still can’t find an attorney in Arizona that “Gets It”………..
  28. Ann, on April 20, 2010 at 11:43 am said:
    Garcia,
    If you are served with the lawsuit and you don’t file any thing, the Bank will get a Default Judgment against you then they proceed to sell your house at Court Auction. You should get a attorney quicky . If you can’t afford an attorney, file a Motion for Time Extension and a Request for Production to get all loan documents from the Plaintiff. Go to http://www.msfraud.org forum, read the thread ‘ Tactical Consideration in Foreclosure Defense’ for more ideas and pleading samples. Also check outhttp://www.foreclosureprose.com .
  29. Sparky, on April 20, 2010 at 11:18 am said:
    A. Garcia,
    You should either file an answer immediately, or, ask for an extension to file an answer. If you fail to file an answer, the next thing you will be getting is a “motion for summary judgment”. If you fail to respond to that, there will be a hearing and you will lose your home.
    That is known as fast-tracking the foreclosure which, is a favorite tactic of the foreclosure mills.
    What state are you in?
  30. Cheryl, on April 8, 2010 at 8:03 pm said:
    I have a fraudulent loan with BOA as servicer. BOA transferred my loan to BAC Home Loan Services, formerly Countrywide. BAC Home Loan informs me that the new creditor is CIG HFI Mortgage. Has anyone ever heard of this creditor? Thanks.
  31. A. Garcia, on April 8, 2010 at 9:22 am said:
    My note does not list MERS. My mortgage/deed of trust lists MERS as a nominee. What would my defense be ? We are in pre-foreclosure (foreclosure complaint has been filed ). Would I need to file an answer to the complaint stating that MERS has no standing ? MERS transferred my loan to Wells Fargo about 2-3 weeks before it (WF) filed the Lis Pendens.
    If I don’t answer the foreclosure complaint do I lose my right to contest the foreclosure later on in court ?
    Thank You.
  32. Judy, on April 7, 2010 at 11:06 pm said:
    Ok, let’s presume that the Note does not mention MERS but that the Deed does, as in this case. Now let’s also presume that a fictitious business name was entered for the lender on BOTH the Deed and the Note. It is America’s Wholesale Lender – a name used by CountryWide. Now let’s presume that ReconTrust is the original Trustee.
    Question 1) Is BofA in a conflict of interest situation in doing a foreclosure?
    Question 2) I do not have any of the assignment docs, but somehow the servicing was moved to Litton just prior to filing the NOD. Given the issue with the named ‘lender’ and MERS on the the Deed, how can Litton have gotten into the role of pressing the foreclosure, other than with an assignment of the note to them? [Litton is having one of their employees do the 'MERS-signing' to name a Substitute Trustee. The Substitute Trustee indicates in their filings that they are working at the behest of Litton.]
    Question #3: To have ‘standing’ Litton would need an assignment, right?, not just a Power of Attorney from the ‘investor’?
    Question #4: How does the fictitious business name throw any wrench into the usage of MERS and any ‘succession’ from AWL to CW to BofA? Yeah, I know that BofA bought CW, but I also read that the fictitious business name causes problems. Can someone elaborate on this for a non-lawyer?
  33. Jan van Eck, on April 7, 2010 at 2:29 pm said:
    To find the “hard copy” of the Opinion in this case, and to then be able to attach the case as a case-law cite to your own Pleadings, look it up on the Missouri Courts website, and then go as follows:
    Missouri Eastern District
    Court of Appeals
    look for the name search box
    type in: Bellistri v. Ocwen loan Servicing, ED 91369
    The “ED” means eastern district and 91369 is the number of the Appellate Docket (not the same number as the trial docket).
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