Tuesday, July 1, 2014

MERS GETS A BEATDOWN IN PENNSYLVANIA FEDERAL COURT


MERS GETS A BEATDOWN IN PENNSYLVANIA FEDERAL COURT!

by cloudedtitlesblog
Extra! Extra! Read all about it!   It’s my opinion and I’m sticking to it!
What exciting news!   Just reading the two-page Order was enough to send chills down my spine!
Oh … don’t worry.  MERS and its parent MERSCORP are arrogant enough to appeal this decision because it involves some huge repercussions for them in the State of Pennsylvania.   I could just hug County Register of Deeds Nancy Becker for this one!   She’s the public official who stood up to the electronic database and its owner who continue to make a self-righteous mockery of the county recording systems across America!   Well … at least not in Pennsylvania according to Judge Curtis Joyner.
You see, Pennsylvania has some interesting statutes (which it appears MERS and its parent think they can ignore):
§351. Failure to record conveyance
All deeds, conveyances, contracts, and other instruments of writing wherein it shall be the intention of the parties executing the same to grant, bargain, sell, and convey any lands, tenements, or hereditaments situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, shall be recorded in the office for the recording of deeds in the county where such lands, tenements, and hereditaments are situate. Every such deed, conveyance, contract, or other instrument of writing which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee or holder of any judgment, duly entered in the prothonotary’s office of the county in which the lands, tenements, or hereditaments are situate, without actual or constructive notice unless such deed, conveyance, contract, or instrument of writing shall be recorded, as aforesaid, before the recording of the deed or conveyance or the entry of the judgment under which such subsequent purchaser, mortgagee, or judgment creditor shall claim. Nothing contained in this act shall be construed to repeal or modify any law providing for the lien of purchase money mortgages.
So Judge Joyner succinctly, as paraphrased, put it to them both like this (my comments are in italics):
AND NOW, this 30th Day of June, 2014, upon consideration of the Motion for Summary Judgment of Defandants, MERSCORP, Inc. Mortgage Electronic Registration Systems, Inc.  (the Judge appears confused even about the name of the parent) and Plaintiff’s Cross-Motion for Partial Summary Judgment and the parties’ further Memoranda of Law in Support and in Opposition, it is hereby ORDERED that Defendant’s Motion is DENIED in its entirety (smack down!) and Plaintiff’s Motion is GRANTED IN PART as outlined in the preceding Memorandum Opinion.
IT IS FURTHER ORDERED that Declaratory Judgment is hereby entered in favor of the Plaintiff (where the Judge declares something to be true) and against Defendants such that Defendants’ are declared to be obligated to create and record written documents memorializing the transfers of debt/promissory notes which are secured by real estate mortgages in the Commonwealth of Pennsylvania for all such debt transfers past, present and future in the Office for the Recording of Deeds in the County where such property is situate.  That would mean that the judge thinks the MERS business model does not comport with the recording statutes as it applies to ALL counties in the Commonwealth! 
IT IS STILL FURTHER ORDERED AND DECLARED that inasmuch as such debt/mortgage note transfers are conveyances within the meaning of Pennsylvania law,the failure to so document and record is violative of the Pennsylvania Recording Statute(s).  Nothing in this act shall be construed to repeal or modify and law providing for the lien of purchase money mortgages.
So … it appears that MERS’ business model has failed in the State of Pennsylvania.  Quick, OCC, Fed, OTS and all you other acronyms … if you think you can get a national mortgage registry into effect and conduct the same obfuscating practices that MERS and MERSCORP appear to have done … you’ll answer to Judge Joyner too! 
Onto the rest of the battle … The Memorandum!  
In virtually every battle waged by MERS and its parent, the attorneys argue whatever will keep them “in the game”, or in this case”, out of the crosshairs of the court.  The Memorandum, in all of its 45-page glory, outlines the insistences of MERS and its attorneys that it has rights and privileges, which I’m still trying to figure out contractually (as compared to the Robinson case in California) how MERS and its “signors” have the rights to do anything, especially with an “alleged corporate resolution” that gave Bill Hultman the capacity to appoint all of these “Certifying Officers”, who turn out to be nothing more than $10 an hour employees of MERSCORP member-subscribers and not the real “officers” themselves!
Pages 28-34 of the Memorandum go into detail about MERS’ agency relationship with its members.  Despite what MERS tried to downplay in court, Judge Joyner said:
We likewise reject the proposition that MERS is not subject to liability because it is only an agent for its member-lenders.  Indeed, as a general matter, an “agent” is a “person authorized by another (principal) to act for or in place of him; one intrusted with another’s business.
Gee, if that’s the case, what Prof. Christopher Peterson stated about MERS’ potential liabilities for its actions appears to be shaking the rafters in Reston, Virginia right about now! Unlike the Agard case, where Judge Grossman eviscerated MERS like a chicken with its head cut off, Judge Joyner appears to accord MERS with all the agency rights it claims to have … and then some, to the point where Billy and the Bad Boys get their feet held to the fire!  What’s more damning is the following line from the Memorandum:
An agent holds the power to alter the legal relations between the principal and third persons.
Did you get that folks?  MERS is now in the cross-hairs of every Pennsylvania homeowner whose chain of title has been dissed by this business model.  If I were a Pennsylvania homeowner, you know what I’d be drafting up right about now for filing.  Imagine … the suits in Pennsylvania alone could bankrupt MERS and MERSCORP in legal fees alone, not to mention the damage awards for statutory violations … and in this case, willful and wanton as the Judge seems to indicate!   The judge’s Memorandum, at the bottom of Page 34, states that MERS may alternatively be held responsible as an undisclosed agent of the lenders for whom it was acting as “nominee”.  So Count I stands against MERS and MERSCORP as to their liability for violating the Pennsylvania Recording Statutes!  Yippee! 
Based on what I’m reading from Pages 35 on … MERSCORP members might want to think about getting OUT OF the MERS System!  Your little scheme, now that it has been ruled as statutorily violative, can now also be used against you and your little “pissant agent” in front of the grand jury.  Notice to agent is notice to principal!
It’s always nice to see Marie McDonnell get a mention … however, I could have told the Court that the MERS Milestone records are as inadequate and as obfuscating as the MERS Servicer ID database itself!  Congrats on the mention, Marie!  (Page 37)
As to Nancy Becker’s comments about “Recorders of Deeds making sure that the chain of title of properties in their county is clear and complete” … there are over 3,000 counties in the U.S. and I can count the number of recorders on one hand that really give a shit about what MERS has done to their real property records.  Like I said before … if you let this bunch of self-proclaimed hoodlums in corporate veils continue to trash your land records, you might as well close up shop because your records won’t be worth keeping!
Hmmm … sounds like a few counties could stand to have their records audited.  If you’re in Pennsylvania, you might want to put a call into your county Register of Deeds and bite on their earlobe for an hour about their nonfeasance of office!
Personally, Nancy (Becker), I think you’re county has lost three times what the memorandum says you lost in recording fees!   So, Judge Joyner really hammered MERS with the Count III for unjust enrichment.  Anyone want an audit to see how much money MERS owes you?   This Count is going to trial folks!
Our website is www.dkconsultants.us.    Forward this blog post to your Pennsylvania Recorder NOW!  We would be happy to discuss auditing your records.  In fact, if we find anything criminal?   Well, we’ll see where that leads.
If I were MERS Certifying Officers or their acknowledging notaries, I think I’d be sweating bullets right now, in light of this ruling!
All in all … it was a good day for the little guy and an even bigger day for Nancy Becker!

No comments:

Post a Comment