MERS is scum. It is used to conceal from you the homeowner the real man behind the curtain (the party who is holding your mortgage).
QUESTION: So what is to be done with this evil smoke screen called MERS?
ANSWER: A good ‘ol Texas butt kicking.
What needs to happen in Oregon is the same as in other states. MERS has to be busted for being what it is…a smoke screen.
I can tell you that we love when homeowners ask for help and they are being pursued by MERS.
We are crushing MERS here in Texas and have yet to lose a battle against the lender scumbags who use MERS to hide.
Call us today if MERS is threatening your home.
- The Bank Slayer
MERS SHOWDOWN LOOMING IN OREGON
From the desk of Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
The appellate courts of Oregon, like many states, have not yet spoken on the numerous issues surrounding MERS, including what MERS really is (legally); what alleged authority MERS has (notwithstanding boilerplate language in Deeds of Trusts or Mortgages); what MERS can or cannot do; and whether MERS assignments are of any legal effect. For those of you following the emerging case law on these issues, you know that the Supreme Courts of Kansas and Arkansas; the U.S. Bankruptcy Courts for the Districts of Nevada and Idaho; the state courts in Missouri, Vermont, and South Carolina; and other courts which have actually dissected the MERS language in Deeds of Trusts and Mortgages have consistently said “NO” to MERS: that MERS is not the “Beneficiary”; that MERS has no authority to transfer the promissory notes because it was never the owner thereof (as one cannot transfer what it does not own); that MERS is limited in its authority by its choice to designate itself “solely as nominee”; and that MERS thus essentially has no power to do anything. These recent court decisions are consistent in their holdings, and cite the same group of recent cases.
MERS is also limited by the very language of its contract which it has with lenders and servicers, as found by the Supreme Court of Nebraska which was cited in a decision from a state court in South Carolina. This language in MERS’ own contract provides that MERS agrees not to assert any rights to the loans or the properties mortgaged thereby. MERS’ own attorney affirmatively represented this to the Supreme Court of Nebraska when MERS was trying to get out of paying certain taxes. However, MERS then turns around in other states and tries to take the position that it has rights in a mortgage instrument and note sufficient to further a foreclosure, which is in fact the assertion of a right both as to the loan and as to the mortgaged property, which is in direct contradiction to MERS own contract provisions! Talk about speaking with a forked tongue!
Fortunately, the overwhelming majority of the recent decisions have seen through MERS’ doublespeak and inconsistent positions, and have struck down MERS’ authority to do anything other than to function as an electronic tracking entity for mortgage loans, period. Certain older decisions, where certain courts blindly accepted the MERS language in a mortgage instrument without really examining what MERS is and what MERS limited itself to, continue to be rejected or are in the minority.
Most of the chatter I’ve stumbled upon regarding MERS and home owners fighting against it have been in the context of the given home owner going through a short sale or foreclosure. But what recourse options does a home owner in good standing on their loan?
In other words, when I pay off my loan down the road, how can I preemptively get assurance that I’ll be able to hold my title? Preemptively determining and documenting a chain of title is what I’m talking about. Should I try to get an attorney or wait for a class action suit representing all MERS loan holders? Please assist.
Residential mortgage loans typically consist of two elements: 1) a note between the lender and the borrower that sets forth the terms of the loan and establishes the obligation to repay the loan to purchase a property; and 2) a security instrument which, depending on the state, may be called a “mortgage” or a “deed of trust.” The security instrument is recorded in the county land records, telling the world that there is a lien on the borrower’s property. This lien allows the property to be foreclosed upon and sold if the borrower defaults on her or his obligation to repay the promissory note.
When a borrower signs the mortgage security instrument at closing, they grant and convey the legal title to the mortgage to Mortgage Electronic Registration Systems Inc. (MERS) and MERS is the mortgagee. As the agent for the promissory note owner, upon instructions from the owner, MERS will commence a foreclosure. The mortgage instrument states that MERS has the right to foreclose and sell the property. Courts around the country have repeatedly upheld and recognized this right.
Generally true but this is mixing facts with opinion. The fact that MERS has the ability to foreclose based upon either a) being named as the beneficiary OR b) holding the Deed of Trust for the lender (the actual owner of the debt) is not the same as the RIGHT to foreclose. If the actual owner of the debt grants permission to foreclose in their name then foreclosure could be proper.
But what if If I assign to myself a homeowner’s deed of trust. Do I now have the right to foreclose based solely upon my own word?
The owner of the debt, which is evidenced by a promissory note, is the end power player, debt holder and the final say on whether or not to proceed with a foreclosure.
I’ve seen two many naked assignments by MERS to trust “someone” gave me permission. Not to mention two competing assignments by MERS to two competing parties.
This is a good question and one I will admit has been pondered in homeowner’s circles. What stops anyone from assigning my deed of trust to themselves and recording it? When I look at what is recorded at my county recorders office, all they know is that long beach mortgage owns my loan and that they intend to sell it to WaMu. It says nothing anywhere about having acutally assigned it to WaMu, or to Chase (the interim owner) and now to Deutsche (whom I have been told is my current “lender” but that was six months ago so who knows who “owns” it now). It is Chase as servicer I deal with, but who owns the loan is a crapshoot.