MERS, MERSCORP, and/or Mortgage Electronic Registration Systems is finally being exposed. Foreclosures ARE being stopped.
Who would have guessed Bush was just greasing today's disaster. Lot's made money, like Country Wide. In Bush's double speak, I think he actually refers to MERS at 2:23
If Bank of America can't produce the original paperwork for their Countrywide loans, possible big problems for BoA. Don't shed too many tears, though.
If your mortgage, foreclosure notices, or any fees you have been or are being charged have the above names on them, please research and learn of your options.
{{{{{{{{{{{{{ I beg someone here that knows the law, to carefully read the MERS Foreclosure Rules written in 1999 below. I sense something is wrong, and can't quite put my finger on what it is. Pro Bono? }}}}}}}}}}}}}}
Also, if you are thinking of buying a foreclosed home and the above names are listed on the title be careful. I suspect there may be some property title issues with many foreclosed property IF they were improperly foreclosed. Caveat Emptor.
Massachusetts Ruling
Since March, some lenders have stopped selling foreclosed properties out of fear the sales later could be voided, and title companies have refused to insure them.
http://www.boston.com/...
IS MERS legal?
Depends on who you ask. But judges in Florida are throwing out foreclosures left and right because or MERS. Attorneys around the country are now after MERS.
Why,
"That Deed of Trust (”DOT”) contained a false representation on its face when it represented that Defendant MERS was a beneficiary under the DOT. Paragraph (E) States that “MERS is a separate corporation that is acting solely as a Nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument.”
http://community2.myfoxaustin.com/...
There is a Class Action Suit against MERS
On most mortgages, MERS is listed as the mortgagee of record in the county land records. The banks are members of MERS and assign the mortgages to MERS so that county land records do not have to be updated each time a mortgage is sold and resold. MERS allows a secondary mortgage market to thrive in the absence of local filing requirements and notifications to borrowers. MERS maintains a database of the beneficial owners and works with the banks as agents/loan servicers but does not provide updated information to the borrowers.
Under the mortgage agreement, lenders are strictly limited to their actual costs, fees and expenses that were actually incurred or obligated to be paid in connection with any enforcement proceedings. However, defendants have been routinely overcharging for attorneys' fees that have not been incurred in addition to such things as clerk filing fees, service of process fees, statutory clerk fees, late charges, delinquency fees, appraisal fees, recording fees, unspecified foreclosure fees and costs, administrative fees, escrow fees, and interest charges. Often, these charged fees and expenses were not actually incurred by defendants and/or were incurred at lesser amounts than were billed to and paid by Class members.
http://www.whesq.com/...
And ask for proof before paying foreclosure fees. They are not allowed to add on profit. Ask for the proof of expense.
This recent ruling by a Nevada Bankruptcy Judge is promising:
October 07, 2009
NEVADA BKR JUDGE KNOCKS MERS ON STANDING ON LIFT STAY MOTION
The conclusion?
CONCLUSION
The lift-stay motions in Dart and Hawkins are denied. MERS may not enforce the
notes as the alleged beneficiary. While MERS may have standing to prosecute the motion in the name of its Member as a nominee, there is no evidence that the named nominee is entitled to enforce the note or that MERS is the agent of the note’s holder. Indeed, the evidence is to the contrary, the note has been sold, and the named nominee no longer has any interest in the note.
IT IS SO ORDERED.
Motion
full file:
http://www.nvb.uscourts.gov/...
http://www.stopmyforeclosurehome.com/2009/10/nevada-bkr-judge-knocks-mers-on-standing-on-lift-stay-m
otion.html
I highly recommend reading the comments on this Neveda article. HOW to fight Bank of America/CountryWide foreclosures can be found in the comments.
Thousands of Foreclosures may stop if MERS is Halted in its Tracks by the Law
There are nearly one million of Nevada foreclosure cases on the MERS list. But it can be done and it is already being done.
The MERS was set up to handle tracking the change of hands of thousands of mortgages across the country and beyond its borders. Representing the multiple lenders MERS has been proceeding with foreclosure cases. But recently a Kansas Supreme Court judge ruled that since it had no interest in the ownership of the property it had no right to foreclosure. Even in non-judicial foreclosure states a federal bankruptcy judge has given a ruling canceling the right of MERS to foreclose so as to protect its assets.
Christopher Peterson a professor of law and consumer rights attorney in Utah referring to these rulings said, “When a court says MERS has no standing – that is a decisive step.” The mortgages were not properly recorded with the relevant authorities. That too is a serious lapse. As per law and tradition each change has to be recorded and fees paid accordingly.
The borrower would still be owing money to the lender but the mortgage would become illegitimate. If that happened then the loan would take on the character of being an unsecured one – akin to the credit card.
Peterson explained that bankruptcy cases are concerned with who has the priority. On settlement of the priority issue depends which of the creditors would be paid off first. Those holding unsecured loans would be relegated to the back of the line with the credit card holders. The judge would now have the option of granting considerable relief to the borrowers that might include reduction of the principal. In these cases the judge would have the right to refuse giving the house and ask for negotiation of fresh loan terms.
http://www.houserepos.net/...
If your foreclosure or bankruptcy lawyer would like some legal analysis of this MERS debacle, Christopher L Peterson has written an acclaimed analysis. Here is an excerpt from the abstract:
The process of securitization, as well as financial institution over-leveraging associated with it, has been well documented and explored.
However, there is one company that was a party to more questionable loans and foreclosures than any other and yet has received virtually no attention in the academic literature.
Mortgage Electronic Registration Systems, Inc., commonly referred to as “MERS,” is the recorded owner of over half of the nation’s residential mortgages. MERS operates a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the United States.
But, it also acts as a proxy for the real parties in interest in county land title records.
Most importantly, MERS is also filing foreclosure lawsuits on behalf of financiers against hundreds of thousands of American families.
This Article explores the legal and public policy foundations of this odd, but extremely powerful, company that is so attached to America’s financial destiny.
The article culminates in a discussion of MERS’ culpability in fostering the mortgage foreclosure crisis and what the long term effects of privatized land title records will have on our public information infrastructure.
The Article concludes by considers whether the mortgage banking industry, in creating and embracing MERS, has subverted the democratic governance of the nation’s real property recording system.
http://papers.ssrn.com/...
Some of the States that are rejecting MERS:
Kansas Supreme Court
http://www.globalresearch.ca/...
Florida
MERS (Mortgage Electronic Registration Systems) announced today that it has asked its members to temporarily cease foreclosure actions in the name of MERS in Florida pending an appeal of an adverse ruling in the Sixth Judicial Circuit Court in Pinellas County.
In his ruling on August 18th, Judge Walt Logan claimed that MERS does not have standing to act as a plaintiff in a mortgage foreclosure suit if it is not the owner of the beneficial interest in the note.
http://www.encyclopedia.com/...
Rhode Island
Rhode Island Attorney George Babcock is finding success using the “Produce the Note” strategy to fight foreclosure for his clients. Mr. Babcock has used the bank’s failure to properly produce documents to get a temporary restraining order to stop the foreclosure process.
When it came time for a hearing before the judge, the banks decided to walk away. The Consumer Warning Network’s Angie Moreschi interviews Mr. Babcock in this radio podcast to learn more about his successful efforts to fight foreclosure.
If you are currently facing foreclosure here are some steps you can follow along with some templates for a legal request, a letter to your lender, and a motion to compel.
http://www.consumerwarningnetwork.co...
Massachusetts - October 14, 2009
Justice Keith C. Long affirmed his own March decision that invalidated foreclosure proceedings involving two Springfield homes because the lenders did not hold clear titles to the properties at the time of sale.
"The issues in this case are not merely problems with paperwork or a matter of dotting i's and crossing t's,'' Long said in a 27-page decision. "Instead, they lie at the heart of the protections given to homeowners and borrowers by the Massachusetts Legislature."
http://www.boston.com/...
For a mini-course and LEGAL TEMPLATES to fight your foreclosure, this site may prove helpful:
http://www.consumerwarningnetwork.co...
FIGHT YOUR FORECLOSURE.
Again, ask for proof before paying foreclosure fees. They are not allowed to add on profit. Ask for the proof of expense.
Also, a complete record of all those who ever held the note can be requested. Everytime a note changed hands, it must be recorded, verified, and capable of being reproduced.
"Show me the Note"
You may still lose, but give it a good fight. And it seems like things for at risk homeowners may work out better in bankruptcy court for some reason.
UPDATE:
Thanks to TLEMON, I found the 1999 MERS Foreclosure Instructions for each state. It's as if they were anticipating this disaster. This has been taken down from the MERS website. I think it is important information:
You can go here to read what MERS wrote about foreclosing homes in your state back in 1999:
http://web.archive.org/...
For example, here are the FORECLOSURE RULES FOR MINNESOTA:
MERS Recommended Foreclosure Procedures for
MINNESOTA
Version 1.1, 11 November 1999
Foreclosing a loan in the name of Mortgage Electronic Registration Systems, Inc. is something new in the foreclosure arena. However, when the role of MERS is examined, it becomes clear that MERS stands in the same position to foreclose as the servicer. MERS, like the servicer, will be the record mortgage holder. It is the mortgage or deed of trust that gives MERS the authority to foreclose.
To help make a smooth transition from foreclosing loans in the name of the servicer to foreclosing loans in the name of MERS, we have developed state by state recommended guidelines to follow. These guidelines were developed in conjunction with experienced foreclosure counsel in your state. We have been able to keep the MERS recommended procedures consistent with the existing foreclosure procedures. The goal of the recommended procedures is to avoid adding any extra steps or incurring any additional taxes or costs by foreclosing in the name of MERS instead of the servicer.
MERS will continually review the guidelines and, if necessary, will issue revisions. The recommended guidelines to follow in your state are as follows:
Mortgages are used and are typically foreclosed non-judicially.
MERS local counsel advises that a loan can be foreclosed in the name of Mortgage Electronic Registration Systems, Inc.
Employees of the servicer will be certifying officers of MERS.
This means they are authorized to sign any necessary documents, such as the power of attorney to foreclose the mortgage, as an officer of MERS.
The certifying officer is granted this power by a corporate resolution of MERS.
In other words, the same individual that currently sign the documents for the servicer will continue to sign the documents, but now as an officer of MERS.
The agencies (Fannie Mae, Freddie Mac and Ginnie Mae) require a blank endorsement of the promissory note when the seller/servicer sells a mortgage loan to them.
Therefore, the note should remain endorsed in blank when the foreclosure is commenced in the name of MERS.
We have been advised that sometimes there is an endorsement of the note to the servicer prior to foreclosure. However, we recommend that the agencies’ policies be followed.
At the foreclosure sale, the certifying officer will instruct the foreclosing attorney to enter a bid on behalf of MERS.
A sheriff’s certificate is issued to the highest bidder.
If MERS is the highest bidder, then the Sheriff’s certificate will be issued to MERS.
The sheriff’s certificate operates as the conveyance of title.
The certificate is executed and recorded during the redemption period.
At the end of the redemption period, a deed will be issued from MERS to the investor.1
However, not every foreclosure counsel follows this procedure currently when foreclosing mortgage loans in the name of the servicer.
If your current practice is to assign the sheriff’s certificate to the investor, then this is also an acceptable option.2
Evictions are handled the same way they are handled when the servicer commences the foreclosure as the foreclosing entity.
If it is an FHA-insured loan and an eviction is necessary, then the eviction can be brought in the name of MERS if MERS is the sheriff’s certificate holder.
However, if you use the option of assigning the sheriff’s certificate, then the certificate is assigned to the servicer instead of to HUD. (NOTE: Many original servicers are out of business, or been merged like CountryWide to BoA)
This way, the servicer will proceed with the eviction the same way it would if the foreclosure were filed in its own name.
If the debtor declares bankruptcy, the proof of claim should be filed jointly in the name of Mortgage Electronic Registration Systems, Inc. and the servicer.
It is advised to file in both names in order to disclose to the court the relationship of MERS and the servicer.
The address to be used is the servicer’s address so that all trustee payments go directly to the servicer.
The Motion for Relief from Stay may be filed either solely in the name of MERS or jointly with the servicer.
If MERS is the foreclosing entity, then it is MERS that needs the relief from the bankruptcy.
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1 During the redemption period, MERS will be considered to be titleholder. However, at the end of the redemption period, a deed to the investor should be executed as soon as possible so that MERS remains in the chain of title for as short a time as possible.
Back to reading
2 The difference between the two options is that some counsels prefer a one-deed process implementing an assignment of the sheriff’s certificate to the investor. Other counsels use a two-deed process with the servicer first taking title, and then executing a subsequent deed to the investor. Counsel should continue to follow the instructions given to them by the servicer of the mortgage loan.
NEVADA
MERS Recommended Foreclosure Procedures for
NEVADA
Version 1.1, 11 November 1999
Foreclosing a loan in the name of Mortgage Electronic Registration Systems, Inc. is something new in the foreclosure arena. However, when the role of MERS is examined, it becomes clear that MERS stands in the same position to foreclose as the servicer. MERS, like the servicer, will be the record mortgage holder. It is the deed of trust that gives MERS the authority to foreclose.
To help make a smooth transition from foreclosing loans in the name of the servicer to foreclosing loans in the name of MERS, we have developed state by state recommended guidelines to follow. These guidelines were developed in conjunction with experienced foreclosure counsel in your state. We have been able to keep the MERS recommended procedures consistent with the existing foreclosure procedures. The goal of the recommended procedures is to avoid adding any extra steps or incurring any additional taxes or costs by foreclosing in the name of MERS instead of the servicer.
MERS will continually review the guidelines and, if necessary, will issue revisions. The recommended guidelines to follow in your state are as follows:
Deeds of Trust are used and are generally foreclosed non-judicially pursuant to a power of sale. Local counsel advises that a foreclosure can be brought in the name of MERS. It is important to note that the same procedures and state requirements that are required to be followed when foreclosing in the servicer’s name must still be followed when foreclosing in the name of MERS. The Trustee must still record the Notice of Default and Election to Sell the Property. After the expiration of the three-month period, the Notice of Trustee’s Sale is filed and published the same way it is when foreclosing in the name of the servicer except that Mortgage Electronic Registration Systems, Inc. (MERS) will be named as the foreclosing entity.
Employees of the servicer will be certifying officers of MERS. This means they are authorized to sign any necessary documents, such as the Substitution of Trustee, as an officer of MERS. The certifying officer is granted this power by a corporate resolution of MERS. In other words, the same individual that signs the documents for the servicer will continue to sign the documents, but now as an officer of MERS. The substituted trustee is typically the foreclosing attorney.
The agencies (Fannie Mae, Freddie Mac and Ginnie Mae) require a blank endorsement of the promissory note when the seller/servicer sells a mortgage loan to them. The note should remain endorsed in blank when the servicer commences the foreclosure. Therefore, the note should remain endorsed in blank when the foreclosure is commenced in the name of MERS.
At the trustee sale, the certifying officer will instruct the trustee regarding the bid to be entered on behalf of MERS for the investor. This is the same process that is used when foreclosing in the servicer’s name. If it is the successful bid, then the trustee will be instructed to execute the Trustee’s Deed directly to the investor. Therefore, the MERS recommended procedure is the same as the current practice of bidding on behalf of the investor so that the Trustee’s Deed is issued directly to the investor. Because the MERS recommended procedure follows the same procedure that is used when the servicer forecloses in its name, no additional recording or transfer taxes are incurred by foreclosing in the name of MERS. Furthermore, there will not be a transfer tax when the trustee’s deed is issued directly to Fannie Mae, Freddie Mac, VA or HUD.
Evictions are handled the same way they are handled when the servicer commences the foreclosure as the foreclosing entity. If it is an FHA-insured loan, then the deed is not recorded to the investor until after the eviction is completed. The eviction is conducted the same way it is conducted when the foreclosure is brought in the name of the servicer.
If the debtor declares bankruptcy, the proof of claim should be filed jointly in the name of Mortgage Electronic Registration Systems, Inc. and the servicer. It is advised to file in both names in order to disclose to the court the relationship of MERS and the servicer. The address to be used is the servicer’s address so that all trustee payments go directly to the servicer, not to MERS. The Motion for Relief from Stay may be filed either solely in the name of MERS or jointly with the servicer. If MERS is the foreclosing entity, then it is MERS that needs the relief from the bankruptcy.
FLORIDA
MERS Recommended Foreclosure Procedures for
FLORIDA
Version 1.1, 11 November 1999
Foreclosing a loan in the name of Mortgage Electronic Registration Systems, Inc. is something new in the foreclosure arena. However, when the role of MERS is examined, it becomes clear that MERS stands in the same position to foreclose as the servicer. MERS, like the servicer, will be the mortgagee of record. It is the mortgage that gives MERS the authority to foreclose.
To help make a smooth transition from foreclosing loans in the name of the servicer to foreclosing loans in the name of MERS, we have developed state by state recommended guidelines to follow. These guidelines were developed in conjunction with experienced foreclosure counsel in your state. We have been able to keep the MERS recommended procedures consistent with the existing foreclosure procedures. The goal of the recommended procedures is to avoid adding any extra steps or incurring any additional taxes or costs by foreclosing in the name of MERS instead of the servicer.
MERS will continually review the guidelines and, if necessary, will issue revisions. The recommended guidelines to follow in your state are as follows:
Mortgages are typically used and are foreclosed judicially. MERS local counsel advises that a loan can be foreclosed in the name of MERS. When MERS has been assigned the mortgage, the caption of the complaint should state Mortgage Electronic Registration Systems, Inc. as the plaintiff. However, this changes slightly if MERS is the original mortgagee of record, meaning that MERS is named on the mortgage in a nominee capacity for the originating lender. The caption should then state Mortgage Electronic Registration Systems, Inc. as nominee for [insert name of the current servicer]. The key is how MERS is named as the mortgagee of record.
The body of the complaint should be the same as when foreclosing in the name of the servicer. MERS stands in the same shoes as the servicer to the extent that it is not the beneficial owner of the promissory note. An investor, typically a secondary market investor, will be the ultimate owner of the note.1
The agencies (Fannie Mae, Freddie Mac and Ginnie Mae) require a blank endorsement of the promissory note when the seller/servicer sells a mortgage loan to them. Therefore, the note should remain endorsed in blank when the foreclosure is commenced unless it is legally required to be endorsed to the foreclosing entity and not just the preferred method. If it is required to endorse the promissory note to the foreclosing entity, then the note may need to be endorsed to MERS. However, we have not found it a requirement in Florida that the Note needs to be endorsed to the foreclosing entity.2
Employees of the servicer will be certifying officers of MERS. This means they are authorized to sign any necessary documents as an officer of MERS. The certifying officer is granted this power by a corporate resolution from MERS. In other words, the same individual that signs the documents for the servicer will continue to sign the documents, but now as an officer of MERS.
After a foreclosure judgment to MERS is entered, a public sale is held. The Plaintiff (MERS) has the option of assigning the foreclosure bid either prior to the foreclosure sale or in the ten (10) day period between the sale and the issuance of the Certificate of Title. The assignment is done with a motion filed with the court, and a court order is entered. If the bid is assigned, the certificate of title is issued directly to the assignee. This is the same method that is used when the servicer forecloses in its own name. Because the MERS recommended procedure follows the same procedure that is used when the servicer foreclosures in its name, no additional recording or transfer taxes are incurred by foreclosing in the name of MERS.
Evictions are handled the same way they are handled when the servicer commences the foreclosure as the foreclosing entity. If it is an FHA-insured loan and an eviction is necessary, then the bid assignment is given to the servicer instead of to HUD. This way, the servicer will proceed with the eviction the same way it would if the foreclosure were filed in its own name.
If the debtor declares bankruptcy, then proof of claim should be filed jointly in the name of Mortgage Electronic Registration Systems, Inc. and the servicer. It is advised to file in both names in order to disclose to the court the relationship of MERS and the servicer. The address to be used is the servicer’s address so that all trustee payments go directly to the servicer, not to MERS. The Motion for Relief from Stay may be filed either solely in the name of MERS or jointly with the servicer. If MERS is the foreclosing entity, then it is MERS that needs the relief from the bankruptcy.
--------------------------------------------------------------------------------
1 Even though the servicer has physical custody of the note, custom in the mortgage industry is that the investor (Fannie Mae, Freddie Mac, Ginnie Mae or a private investor) owns the beneficial rights to the promissory note.
Back to reading
2 If the promissory note is endorsed in blank and the servicer has physical custody of the note, the servicer will technically be the note holder as well as the record mortgage holder. By virtue of having the servicer’s employees be certifying officers of MERS, there can be an in-house transfer of possession of the note so that MERS is considered the note holder for purposes of foreclosing the loan.
VERMONT Is Vermont a little tougher for a home to be foreclosed upon?
MERS Recommended Foreclosure Procedures for
VERMONT
Version 1.1, 11 November 1999
Foreclosing a loan in the name of Mortgage Electronic Registration Systems, Inc. is something new in the foreclosure arena. When the role of MERS is examined, it becomes clear that MERS stands in the same position to foreclose as the servicer. MERS, like the servicer, will be the record mortgage holder. It is through the mortgage that MERS is given the authority to foreclose.
To help make a smooth transition from foreclosing loans in the name of the servicer to foreclosing loans in the name of MERS, we have developed state by state recommended guidelines to follow. These guidelines were developed in conjunction with experienced foreclosure counsel in your state. We have been able to keep the MERS recommended procedures consistent with the existing foreclosure procedures. The goal of the recommended procedures is to avoid adding any extra steps or incurring any additional taxes or costs by foreclosing in the name of MERS instead of the servicer.
MERS will continually review the guidelines and, if necessary, will issue revisions. The recommended guidelines to follow in your state are as follows:
Mortgages are typically used and are foreclosed judicially. MERS local counsel advises that a loan can be foreclosed in the name of MERS. Over 90% of the foreclosures are by strict foreclosures. When MERS has been assigned the mortgage, the caption of the complaint should state Mortgage Electronic Registration Systems, Inc. as the plaintiff. However, this changes slightly if MERS is the original mortgagee of record, meaning that MERS is named on the mortgage in a nominee capacity for the originating lender, its successors and assigns. The caption should then state Mortgage Electronic Registration Systems, Inc. as nominee for [insert name of the current servicer]. The key is how MERS is named as the mortgagee of record.
The body of the complaint should be the same as when foreclosing in the name of the servicer. MERS stands in the same shoes as the servicer to the extent that it is not the beneficial owner of the promissory note. An investor, typically a secondary market investor, will still be the ultimate owner of the promissory note.1
The agencies (Fannie Mae, Freddie Mac and Ginnie Mae) require a blank endorsement of the promissory note when the seller/servicer sells a mortgage loan to them. Therefore, the note should remain endorsed in blank when the foreclosure is commenced in the name of MERS unless it is legally required to be endorsed to the foreclosing entity. If it is required to endorse the promissory note to the foreclosing entity, then the note may need to be endorsed to MERS. Local counsel has advised that it is essential that the Promissory Note be held in the name of the mortgage holder.2
Employees of the servicer will be certifying officers of MERS. This means they are authorized to sign any necessary documents as an officer of MERS. The certifying officer is granted this power by a corporate resolution of MERS. In other words, the same individual that signs the documents for the servicer will continue to sign the documents, but now as an officer of MERS.
Because the majority of the foreclosures are by strict foreclosure, title will vest in MERS momentarily.3 The certifying officer will submit an affidavit of amounts due to the Clerk of Court, after which a default or summary judgment will be issued by the Court. The Clerk will prepare an accounting. Once the accounting is received, a judgment is prepared and served. The judgment is then signed by the Court. After the redemption period expires, a Certificate of Non-Redemption and Writ of Possession will be issued by the Court to MERS. The property will then be deeded from MERS to the investor. This is the same process that occurs when the servicer of the mortgage loan forecloses in its name. Because the MERS recommended procedure follows the same procedure that is used when the servicer forecloses in its name, no additional taxes are incurred by foreclosing in the name of MERS.
An alternative option is to file a Motion for Substitution of Parties after the judgment to MERS is entered. At this time, an unrecorded assignment of the mortgage needs to be shown to the judge. It should be noted that certain courts are not staffed with full time judges and there may be a slight increase in time before this Motion can be decided. It is recommended that this Motion be filed as soon as possible after the judgment is entered so that it is completed prior to the expiration of the redemption period. At the end of the redemption period, a Certificate of Non-Redemption is recorded which transfers the title. Prior to the Certificate being issued, the assignment of the mortgage is recorded.
Local counsel advises that Fannie Mae, Freddie Mac, VA and HUD are exempt from transfer taxes on the sheriff’s deed.
Evictions are handled the same way they are handled when the servicer commences the foreclosure as the foreclosing entity.
If the debtor declares bankruptcy, the proof of claim should be filed jointly in the name of Mortgage Electronic Registration Systems, Inc. and the servicer. It is advised to file in both names in order to disclose to the court the relationship of MERS and the servicer. The address to be used is the servicer’s address so that all trustee payments go directly to the servicer, not to MERS. The Motion for Relief from Stay may be filed either solely in the name of MERS or jointly with the servicer. If MERS is the foreclosing entity, then it is MERS that needs the relief from the bankruptcy.
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1 The servicer usually has physical custody of the note at the time of the foreclosure with a blank endorsement. This makes the servicer the noteholder for the purposes of foreclosing. However, custom in the mortgage industry is that the investor (Fannie Mae, Freddie Mac, Ginnie Mae or a private investor) owns the beneficial rights to the promissory note.
Back to reading
2 We have been advised that the named plaintiff in the foreclosure action should be both the record holder of the mortgage and the holder of the promissory note. This is typically considered to be the servicer because if the promissory note is endorsed in blank and the servicer has physical custody of the note, the servicer will technically be the note holder as well as the record mortgage holder. By virtue of having the servicer’s employees be certifying officers of MERS, there can be an in-house transfer of possession of the note so that MERS is considered the note holder for purposes of foreclosing the loan.
Back to reading
3 MERS should only remain the titleholder for as short as time as possible. A subsequent deed should be executed to the investor immediately.
Here's is a great, easy to understand analysis of how we got here:
the new
roadto serfdom
An illustrated guide to the coming real estate collapse
By Michael Hudson
Even men who were engaged in organizing debt-serf cultivation and debt-serf industrialism in the American cotton districts, in the old rubber plantations, and in
the factories of India, China, and South Italy, appeared as generous supporters
of and subscribers to the sacred cause of individual liberty.
—H. G. Wells, The Shape of Things to Come
http://www.insurgentamerican.net/...
UPDATE: Here are a couple of great websites dealing with the foreclosure scam and MERS. If you or anyone is facing foreclosure take some time and read these, especially lilvinglies below:
http://4closurefraud.wordpress.com/...
http://livinglies.wordpress.com/
D O N O T GIVE UP YOUR HOME WITHOUT A FIGHT. Study, learn, then educate your lawyer.
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