Forever, basically, one could always find out who was the mortgagee of their loan. The need for this is not some quaint antiquated idea, some notion that should be viewed as “the way things were in the good old days”. It’s critical to anyone who owns property, and it would be simple to argue that our constitution points to that basic right as among the most important of rights. Little if anything was as paramount to the framers as property rights.
As Christopher Collier and James Lincoln Collier point out in their book Decision in Philadelphia, those men had “an almost religious respect” for property, that “the rights of property were inviolable,” and that the Constitution itself is the embodiment of the rights of property as developed primarily by John Locke in the 17th century.
Most startling of all, perhaps, was Forrest McDonald’s observation in his book Novus Ordo Seclorum that property rights were so important to the Framers that all but 4 of the 55 men at the Constitutional Convention placed their protection behind only liberty itself as the sacred charge of government.
Skip ahead to today. As Neil Garfield once wrote, “No mortgage can be foreclosed without the mortgagee producing the note and stating that it is in default and showing [proving] that this is so. In securitization, this is NEVER possible.”
While we were busy watching the NFL, MERS came along and started the upheaval of all that our framers wrote. Everyone’s familiar with Carpenter v. Longan, which has been hardwired in property law for good reason since just after the Civil War. It states:
However, for there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned.
And yet, due to the Minnesota Supreme Court’s ruling in Jackson v. MERS, a lower court recently ruled for a motion to dismiss in favor of B of A, and against a homeowner who was attempting to find out the holder of the note in foreclosure, by stating the court’s interpretation of Jackson as follows:
“….a reading of the opinion can leave no doubt that Jackson holds that a mortgagee is not required to have any interest in the promissory note in order to foreclose.”
Say what? But what happened to Longan? To put that another way, the borrower doesn’t have a need to know WTF’s going on with their property….it’s none of their business, it’s a profit model that doesn’t concern the homeowner. It’s the same mindset that once sold slaves for $20 a head and farmed them till they dropped, and also decided that all that land just sitting there that the Native Americans occupied would be better off owned by (so called) civilized people.
Another court in MN ruled likewise when it said:
“Any disputes that arise between the mortgagee holding legal title and the assignee of the promissory note holding equitable title do not affect the status of the mortgagor for purposes of foreclosure by advertisement.”
So, as we can clearly see, what the framers of the constitution thought was one of the most important rights of man is quietly being usurped in courts around the nation. Recently, Michigan’s Supreme Court ruled in favor of MERS as well:
“….the Supreme Court clearly stated that MERS, by virtue of its status as mortgagee, has an ownership interest in the indebtedness secured by the mortgage, and therefore has standing to bring a non-judicial foreclosure action.”
After the Michigan ruling, MERS said this:
“The Supreme Court’s decision affirms MERS business model and will allow the Michigan real estate industry to get back to business as usual,” said Bill Beckmann, president and CEO of Merscorp, the parent company of MERS. “This will allow homeowners to resolve title issues and buyers to move forward with the purchase of foreclosed properties, which is good for neighborhood stability,” Beckmann continued.
When Beckman states that “this will allow homeowners to resolve title issues…” what he’s really saying is that from now on, ex-homeowners can rest assured that some bank or another took their home, and say it with certainty. Another thing that can be said with absolute certainty is that the “buyers moving forward with the purchase of foreclosed properties” will be whacking a hornet’s nest that will sting them for as long as they pretend to own the home. It will take 100 years to resolve the titling issues resulting from MERS, and you can take that to the bank.
Earlier this month, the Connecticut Supreme Court said:
“MERS holds mortgages, given in good faith for the purpose of securing a debt, for the security of creditors. To hold such mortgages void would be to frustrate the intentions of both mortgagors and mortgagees.”
No, what’s really frustrating to mortgagors is having one’s house removed while the age old laws of the land are ignored and re-written.
And just recently, the Arizona Supreme Court ruled that having just the promissory note is sufficient for notice of trustee’s sale. They said:
“While failing to record an assignment could make the assignee vulnerable to challengers from others with interest in the property, the court said, Arizona law expressly says unrecorded instruments are binding.”
Now who is something like a faulty assignment really going to affect? How common could this be, considering the business model that MERS constructed? I mean, they rely on around 20,000 or so unpaid people to update their database, what could possibly go wrong?
Well, I’ll tell you. Two separate banks own my loan, or believe that they do. Two separate assignments of mortgage point to each of these entities as having not only ownership in my property, but the right to foreclose as well. And notice how the previously mentioned court opinions so often affect people in non-judicial states. So the burden is on the homeowner to file suit to stave off certain foreclosure, a homeowner who is more often than not already asset stripped to the bone due to economic conditions, and is hardly capable of defending against the full frontal assault about to bear down on them by a team of well versed and well paid attorneys for the banks (paid for by zero interest taxpayer money thanks to the Fed, which it just so happens is operated by the very same banks that own MERS).
So it’s my burden to prove the unmistakable lunacy behind this legal impossibility, that two banks own my loan, or lose the home that I built with my own bare hands. Not to mention that Fannie Mae admits to owning my loan, even though there’s zero transparency on that anywhere. So I am, as part owner in Fannie Mae (as a taxpayer) foreclosing on myself, all the while funding my opposition’s legal team (once again as a taxpayer through ZIRP), with little hope of defeating such odds and such heavily armed foes, partially due to the fact that the my Treasury Secretary Timothy Geithner has disallowed the funds that Congress approved in TARP going to homeowners who find themselves in trouble (that’s me again), all with the tacit approval of my president, who’s largest campaign contributors are the very same banks that are foreclosing on me and who own and operate MERS and the Fed, who made it all possible. How much fun is that?
What would our framers of our constitution say to this? Exactly this:
“Everything predicted by the enemies of banks, in the beginning, is now coming to pass. We are to be ruined now by the deluge of bank paper. It is cruel that such revolutions in private fortunes should be at the mercy of avaricious adventurers, who, instead of employing their capital, if any they have, in manufactures, commerce, and other useful pursuits, make it an instrument to burden all the interchanges of property with their swindling profits, profits which are the price of no useful industry of theirs.”
Thomas Jefferson.
My goal, although exceedingly difficult and uphill all the way, is to not only defeat these banksters who are attempting to take my property to add to all the lands and all the money that they’ve already stolen from the American people through their covert operations at the Fed and MERS and backdoor bailouts, but to see to it that the person who claimed an agency relationship when he transferred, in the name of MERS, my mortgage to two separate banks in their feeding frenzy….to see that he goes to prison for securities fraud. No small task that.
I personally don’t buy the necessity to prove intent in a fraud case like this. If fraud was committed, it is by definition intentional. How can a person unintentionally defraud another out of hundreds of thousands of dollars and the rights to property that our framers so cherished? If the perpetrator is so incompetent at business that he doesn’t realize he is defrauding someone, he’s too fucking stupid to be in business in the first place.
True story. Recently in my state, a group of homeowners had to defend their property rights against their local city government, in a land use issue. The citizens kept addressing the city council with the constitutionality of the issue. Finally, the city commissioner said, “Quit bringing up the constitution!” The citizens were aghast. He continued, “I know we’ve sworn to uphold the Constitution but it is an old document; times have changed”.
In Jackson v. MERS, the court writes, “Looking at the mortgage banking industry today, it is apparent that in many mortgage transactions a George Bailey no longer sits in the corner office of the Building and Loan Association in Bedford Falls.” That’s correct. Instead, a computer whirs away in Reston Virginia deciding the fate of millions of borrowers. And my guess is that the algorithm’s been skewed by its creators.
We owe it not just to ourselves, but to our children’s children to fight MERS and the issues surrounding property and agency law in courts across the land with as much vigor as we would against any foe threatening the United States. As Supreme Court jurist Hugo Black once wrote, “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.” Fuck MERS and the banks it rode in on.
And Merry Christmas to all.
