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.

Plain and simple – it is dangerous to practice law without actual knowledge of what you’re doing.   Not so much dangerous from the standpoint of ”unlicensed practice of law”  but instead that a typical homeowner is not prepared to go into court and face a hostile (and possibly knowledgeable) attorney working for the bank plus deal the uncertainty of getting a judge who may or may not have the patience typically needed to deal with a “Pro Se” party.

If you are facing a lawsuit in regards to your home or want to file a lawsuit against your mortgage company, please seek out a credible and experienced attorney that has experience in real estate and/or mortgage law.  A good tip is to go to the District Court Clerk in your county (or go online) and look for suits in which mortgage companies are being sued.  See which attorneys (or law firms) are representing homeowners in your area.  You don’t want to be the practice case for a lawyer unversed in the subject matter.

Thanks to Jeff Barnes for writing the piece below.

–  The Bank Slayer

DON’T TRY THIS AT HOME III: MORE HORROR STORIES OF PRO SE FORECLOSURE DEFENSE DISASTERS

Some years ago, there was a tv commercial where a couple had a leaky kitchen sink. The husband, obviously not a plumber, told his wife “Don’t worry honey, I can handle this; it’s simple”. Needless to say, after many hours and a flooded kitchen floor with the pipes shooting water like a fountain, they called a plumber who remedied the problem in minutes, but only after having to spend quite a bit of time remediating the damage done by the husband.

In the last 2 days, we have received more than 8 horror stories from pro se borrowers who have tried to defend their own foreclosure cases, both in judicial and non-judicial states. Despite all of their efforts using concepts either gained from internet surfing or talking to other non-lawyers, the bottom line was the same:

“Help! My case is screwed up!”

“The Judge dismissed my lawsuit!”

“The Judge will not compel the original note!”

“The other side is trying to get attorneys fees against me!”

“My home has been sold even through I sued!”

We have repeatedly cautioned non-lawyers from trying to engage in the practice of law especially in this ever-evolving field of law where many states do not even have case law on the problems with MERS assignments, the necessity for proof of chain of title in order to foreclose, the elements of legal standing, etc., and where many of the Judges, through no fault of their own, have just not been presented with these issues yet. Although many of the legal concepts in proper foreclosure defense have been around for decades, they have not been applied to the complicated securitization sceanarios attendant to the generation of millions of mortgage loans from 2001 through 2007.

Two other problems which invariably result from “do-it-yourselfers” are, first, that once they get backed into a corner by the Judge or the opposing attorney and then try to retain an attorney, the attorney’s job has been rendered more difficult because the attorney has to first attempt to undo the damage caused by the pro se’s mistakes before even getting a chance to try to advance legitimate issues and defenses. As such, the attorney has to spend more time on the case than he or she would have if they had been given the case from the getgo, which means higher retainers and more fees. The second problem is that the pro se has probably angered the Judge and the opposing attorney to the point where the new attorney is facing a lion’s den going in. We have had to cope with this situation many, many times over the last couple of years.

For those who insist on proceeding by themselves, there are several “theories” which have been uniformly rejected although they continue to be bandied around the internet, to wit:

(a)  “Claims in Admiralty”. Admiralty jurisdiction is exclusive Federal jurisdiction for claims which occur on “navigable waters”, which is a legal term essentially meaning that the waterway is one on which a boat can be piloted using maritime navigational maps. Thus, unless you live on a houseboat on a active waterway which has been mapped and platted, “Admiralty” does not apply.

(b)  “Presentment bonds”. These have been universally rejected. A bond is collateralized by either full cash or other tangible property (e.g. gems, real estate, etc.) so that if a claim is made on the bond, the collateral satisfies the payment. “Presentment bonds” do not quality.

(c)  “The bank did not lend me money”. This is practically frivilous. Whatever the “bank” did, it permitted the borrower to either pay off the existing mortgage (on a refi), allowed the borrower to obtain cash out (on a HELOC or cash-out refi); or obtain a home (on a purchase-money first mortgage). Attempting to advance this theory to defend a foreclosure is like walking through a dynamite factory smoking a cigarette: you are going to cause everyone to explode, including the Judge and opposing counsel.

Yes, litigation is expensive. Yes, attorneys are not cheap. However, someone who tried to play attorney and then gets hammered is going to either (a) lose their house, or (b) wind up paying an attorney double or triple to TRY to fix the damage caused by the do-it-yourselfer, assuming it can even be fixed and assuming the Judge is not already thinking negatively about the case because of the nonsense advanced by the pro se who has, in the Judge’s opinion (and rightfully so), wasted the court’s time.

Jeff Barnes, Esq.