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October 22, 2010

Comments

Mike Hall

Well said. The concept of unjust enrichment will need to be observed, or else we'll have total chaos. If courts operate as political beasts, rather than serving justice, we'll have more corporate witch-hunting and it will simply push costs onto the good folks who DO pay...and gold into the pockets of the unworthy and their attorneys. If you're someone who DOES pay your bills, you should be prepared to head down to your the local courthouse and make the very un-PC protest against the "poor borrower" and FOR the big bad bank.

simon l

MERS does not allow the homeowner to know who has an interest in the money owed, and servicer Banks have no contractual or beneficial interest in the mortgage and note. The note is the contract, not the mortgage. The mortgage is never sold.
The note is bought, sold, and traded - sometimes more than once (i.e, a note is copied and the copies are sold simultaneously to different entities. Those entities have nothing to do with the mortgage lien)
Only the original lender, named on the mortgage, has the right to foreclose.
The right to foreclose and the right to be repaid must be held together, by the same entity, for a foreclosure to be valid.
MERS allows securitizers to separate the mortgage (right to foreclose) from the note (right to be repaid). The lender no longer has a right to be repaid once the lender sells the note to a securitizer. The mortgage was never assigned to the securitizer and it does not have the right to foreclose.
Those assignments never happened, because the fraud (selling the note for full price to several entities at once) would be revealed if it was necessary to record each assignment.
A lender cannot claim a default because it was repaid in full. In securitization, the servicer works for the securitizer, who must answer to the investors. The investors have a right to be repaid by the securitizer. The servicer does not have a right to be repaid. In a loan pool failure, the securitizer may or may not have recousre against the seller of the note, but not against the homeowner. When a default or rescission occurs, the servicer stands to make a huge profit if it can make it appear that the servicer has a right to foreclose. By using MERS, the mortgage industry has made huge profits at the expense of investors and homeowners.
The note debt may be owed and the obligation to pay may be valid, but it is an unsecured obligation. To make it seem like it is still secured by effecting a false affidavit of mortgage and note assignment is fraud and a violation of the homeowner's right to possession. And for any one other than the person with a right to be repaid to attempt collection of even a valid unsecured note debt is theft and fraud. MERS facilitates this theft and fraud. The Bank has lost nothing. The securitizer is reimbursed for loss under insurance or a PSA between it and the lender that has nothing to do with the homeowner. Both the lender and securitizer will claim losses under an insurance contract, and will thus lose nothing. The investors may certainly lose - but MERS was not mentioned when the investors took risk. The homeowners were never told that thier homes were no longer secured by a valid mortgage, for obvious reasons. At the same time, homeowners were not repaying the correct persons - and that was never disclosed, either. When the servicer took a home in foreclosure under MERS, the opportunity for a homeowner in detriment to claim bankruptcy against that unsecured debt was negated, leading to homelessness while all others in the game were repaid.
It is those fraudulent foreclosures that lowered home values, not the troubled borrowers. Would you have the same reaction if these people would have been able to keep thier home value in the case of job loss? Please understand that as long as MERS exists, it could happen to anyone, even a homeowner with no current problems. If you have a MERS mortgage, I suggest that you contact your servicer and meet up with them so you can see the Note you signed, in person. Find out whether you are truly paying your hard-earned money to the person who has a right to be repaid - don't take the servicer's word for it if it announces that it is the agent, ask to see the original authorization documents. Copies are too easy to manipulate. Then, contact that real party and find out if it was ever assigned a mortgage to your house by the lender. You will be shocked at all you discover in this mess, and maybe you will not be so harsh with those who are suffering the most in this debacle.

Dick Lepre

Simon,

I really do not understand your point. If anyone sold the same whole mortgage to several different entities by representhig that they were the only people buying it then they were commiting fraud. Alleging that fraudulent foreclosures were in any way the cause of the mortgage mess is totally false.

Everyone who signs a note and deed of of trust (this is what is done in California) gets a copy. The deed of trust is recorded. If the servicing of your loan is sold you will first receive a "goodbye letter" from the old servicer which give you the name, afddress, phone and loan number of the new servicer. Within 2 weeks you will receive a "hello" letter from the new servicer. The MERS online publically accessible database also has the holder of the note for most notes.

Disabled Dad

I know this is an old blog but Dick Lepre, YOU DON'T KNOW SHIT ABOUT ANYTHING!. Your last statement is based in a perfect world. Everything Simon said is true and 10X more. I know it, I'm living it. Those people in the process of signing the note and deed, blah blah. Those things didn't happen that way. I had the loan terms completely changed from 30 yr Fully Amt loan to a 10/20yr Interest Only loan.Mistake made was they gave me the TILA for the first loan and then gave me the 2nd TILA and then a 3rd TILA. Now if I hadn'tpassed the test for the requested loan 1st TILA I would have been aware of it.It was sent to the Residential R/E Div BofA. This is due to a little law stating that I have to be provided with that denial. I wasn't so why would it be necessary to go to the 2nd TILA and create ANOTHER APPLICATION oh and go thru the Warehouse R/E div of BofA. Now thereis so much more in my case alone where criminal and civil violations pop up. You are either one of them or just plain stupid

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