Balancing the Scales of Justice for Pro Se Homeowners

MERS takes a licking…and will stop ticking!

Posted by on Feb 4, 2014

MERS takes a licking…and will stop ticking!

In what can only be termed a “it’s about time!” decision, a federal court judge out of the Central District clearly explains MERS roletime for change as a “nominee” and NOT the beneficiary of the Deed of Trust.  Relying on its “formalistically”  recitation that it is the “beneficiary” MERS and its comrades, Severson & Werson, take a sound beating as the Judge emphatically tells them to go pound sound. (Okay,  he doesn’t actually tell them to pound sand but the Judge clearly tells them  he will not be made a party to their make believe nonsense!)

As many of us have learned, it is all about the “words” that are used and how well they are parsed[1] in the pleading and arguments.  Here the Robinsons filed a Quiet Title action in which they were able to successfully quiet title the title to their property against all known “adverse” parties.  MERS, after the fact, learns the Deed of Trust has been expunged and immediately fires off a letter telling the attorney what a little liar he is and how they are going to pull his lying little pants into court and get him spanked. (See MERS LETTR RE JDGMNT on Quiet Title).

Obviously the Robinson’s weren’t willing to be bullied and pretty much told MERS..BRING IT ON!   MERS, being the bully it is, unafraid of any little ole’ homeowner, along with its parent company, MERSCORP marches into Federal Court demanding the judgment be vacated on the grounds that it is VOID.  MERS is the beneficiary of the Deed of Trust and had a right to be notified based on its “interest”; and since MERS wasn’t named or notified, the judgment is VOID.

Parade

 

Ah …the beauty of brilliance.  I say we have a parade for Al West because of the simple, beautiful logic he used in helping these homeowners.  As detailed in the ruling (See Ruling Dismissing MERS ) the only parties that had to be notified are the parties with an adverse interest  in the “title”…..not parties with an “interest” in the property.   BIG DIFFERENCE.

Judge Gutierrez doesn’t just hammer MERS for its arrogance…he goes further in calling them on their shenanigans with statements such as:  (keep in mind MERS is the Plaintiff in this case, not the defendant)

  • “Plaintiffs seem to have no problem with conflating the term “interest” with the term “title”, the Court refuses to follow suit”
  • “Plaintiffs overbroad averments of their “interest” in the property do not cohere with section 762.010″
  • “The flaw in Plaintiffs pleadings runs deeper still”
  • “While Plaintiffs place much weight on their purported role as the “record beneficiary” of the Deed of Trust in order to assert an interest in the title of the property, this is nothing more than obfuscation” (emphasis added)

HERE ARE THE ONES TO PAY REAL ATTENTION TO:

  • “….the substance of the Deed of Trust shows that Plaintiffs are not in fact the actual beneficiary”
  • “….while Plaintiffs nebulously allege that Union Pacific Mortgage has since transferred the note, Plaintiffs notably do not allege that the note was transferred to them”
  • “Plaintiffs may call themselves the “record beneficiary of interest” as many times as they like, but this will not magically make them so”
  • “Plaintiffs are the nominee of the beneficiary”, and that’s the end of the story”

I am curious as to whether this is the “end of the story” …this ruling, like Glaski presents a very interesting quandary for the Notorious Five[2], smaller servicers and MERS.  If it is appealed, and lost, then this will embolden even more homeowners and we may very well see a gold rush to the courts as more and more homeowners stand up for their property rights.  (Though this ruling with its incredibly well reasoned ruling may embolden more homeowners now).    If they do not appeal, then they have to come up with a different argument and go after another homeowner who has managed to get their Quiet Title.

In the midst of reading this; please note the Court makes a distinction between arguing whether MERS has the right to “transfer interest” or “initiate foreclosure” and MERS claim to rights in the “title” of the property.   The Court does an excellent job of calling MERS out in regards to the transfer of “notes” and the real beneficiary pursuant to the Deed of Trust…arguments that I believe CAN be used in wrongful foreclosure cases against MERS.  But the issue of “title” and “interest” are specific to the Quiet Title action and the fact that the Defendants (Robinsons) did not notify MERS about their Quiet Title action.  This is a huge win; it is important to understand this lawsuit was about a Quiet Title action NOT a wrongful foreclosure action.  So use it, use it wisely.  Go forth…and tell the Notorious Five and MERS to go pound sand.

KEEP UP THE FIGHT!

Simonee

www.infotofightforeclosure.com



[1] Parsed: analyze (a sentence) into its parts and describe their syntactic roles.

[2] Wells Fargo, N.A.; Bank of America; JP Morgan Chase Bank; Citibank; GMAC/Ally Bank

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