Harvard Law writes Amicus Brief finding scathing and fatal defects in MERS' business model
I always knew that law SCHOLARS would abhor the absolute breakdown of common logic and lawful protocols built in to the very architecture of the abomination known as Mortgage Electronic Registration Systems, Inc.'s business model concept. Scholars actually APPLY LOGIC AND CRITICAL THINKING (or they're expected to) and society does rely on the intelligence and studied intellect applied to the Global Financial Crisis and its causes and possible corrections.
One of the people's heroes is Nancy Becker, County of Montgomery PA Clerk Recorder who sued MERSCORP HOLDINGS, INC. for their role in evading recordation fees but conducting business for their member-owners in that evasion. As County coffers dried up, Becker got fired up. She, along with other Clerk Recorder-Heroes (like John OBrien in Salem MA (www.salemdeeds.com) and Jeff Thigpen in Guilford County NC) became outraged also on behalf of their constituents who rely on true and accurate title registrations for real property!
“It’s the integrity of the public record that we really want to protect,” Becker said. “To make sure that at any given time, that a person can look at a property and find out not only who owns it but who is holding the paper on it. If they have paid their mortgage or have attempted to pay their mortgage they should not be foreclosed on. It’s about preserving our residents’ right to maintain their homes.” Full article on the case here: http://www.timesherald.com/article/JR/20140703/NEWS/140709931
See this blog for "Who is the BOSS of the Note?" post.
~*~ Resource books recommended: "SHELLGAME MERS: Contrived Confusion" e-book and hardcopy of "Fighting the Foreclosure Machine," by retired attorney Robert N. Janes, www.fightingtheforeclosuremachine.com
Linked here is a blog entry summarizing the best quotes in Harvard Law's Amicus Brief and analysis: WOW! Here are some logical conclusions to light a fire under some people's you-know-what's:
Harvard Law Amicus Brief here, titled: ""MERS Litigation -- Brief Of Amicus Curiae - The Legal Services Center of Harvard Law School And Law Professors in Support of the Appellee, Montgomery County, Pennsylvania, Recorder Of Deeds"
Mortgage servicing companies, banks, courts and government agencies have all expressed astonishment at the extent to which MERS database is inaccurate. (p. 24)
“Simply put, ‘MERS is the Wikipedia of land registration systems.’ Culhane v. Aurora Loan Services, 826 F. Supp. 2d 352 (D. Mass. 2011) aff’d, 708 F.3d 282 (1st Cir. 2013).” (p. 12)
Janis Smith, a spokeswoman for Fannie Mae, admitted Fannie Mae kept its own records and that “We would never rely on it [MERS] to find ownership.” Powell and Morgenson, supra p. 32. (p. 25)
Judge Jennifer Bailey, a circuit court judge in Miami stated of 60,000 foreclosures filed in 2009 in her court, “[A]lmost every single one of them… represents a situation where the bank’s position is constantly shifting and changing because they don’t know what the Sam Hill is going on in their files.” Transcript of Hearing on Order to Show Cause at 5, HSBC Bank USA v. Eslava, No. 1-2008-CA-055313 (Fla. Cir. Ct. May 6, 2010).
“…MERS never requests or possesses proof that one of its members in fact holds the mortgage note or is the agent of the note holder when that member seeks to foreclose.”
Because MERS records are shrouded in secrecy, it is also impossible to know just how incomplete or inaccurate MERS records are. However, surveys and reporting by public media have suggested that the MERS database is alarmingly inaccurate. (p. 23)
When one compares these costs to the costs of record-keeping that the industry targeted for elimination, $10 per recordation, amounting to around $30 per loan, seems a small amount to pay to protect a family’s interest in the ability to discover who owns their loan, who would execute a foreclosure proceeding against them, and to challenge a party attempting to do so on the basis of mistake or fraud
“The creators of MERS did not lobby Congress for a uniform, electronic mortgage system that could have retained the public recording system’s transparency and reduced costs. Rather, without judicially or statutorily recognized legal authority, they independently launched MERS as a private system, and created legal theories to legitimate the system post facto.” (p. 13)
In Professor Joseph Singer’s words, MERS allowed banks “to be prolific about securitizing those mortgages but complacent about formalizing mortgage assignments. The resultwas that the banks made many, many mistakes in keeping track of these transactions. Formal records of mortgage transfers are often incomplete or incorrect; the chain of title for many properties appears to be irretrievably broken.” Joseph Singer, Foreclosure and the Failures of Formality, 46 Conn. L. Rev. 497, 503-04 (2013).” (pp. 13-14)
While MERS’ creators knew that differences in state real property law would pose problems but chose not to investigate the possible impact, Nevertheless, MERS conducted no fifty-state analysis of the potential impact of its operations. Memorandum from Covington & Burling to R.K. Arnold, President and CEO, MERSCORP, Inc. (Sept. 1, 1997) (on file with the Duke LawJournal). (p. 22)
MERS’s attempt to establish “facts on the ground supporting its existence therefore does not deserve deference, and in practice has not worked. State laws have unsurprisingly taken disparate positions with respect to numerous aspects of MERS, and borrowers are now impacted in vastly different ways based on their jurisdiction. Laura A. Steven, MERS and the Mortgage Crisis: Obfuscating Loan Ownership and the Need for Clarity,” 7 Brook. J. Corp. Fin. & Com. L. 251, 256-57 (2012). (p. 23)
MERS inserts a placeholder in the public record. It thereby grafts itself onto systems for recording interests in land, while rendering that recording meaningless.
MERS has therefore privatized the majority of mortgage records in the country while undermining the value of county public records. Peterson, Two Faces, supra p. 9, at 132 (2011).*
MERS, in effect, creates a lacuna in the record, and makes meaningless the record onto which it is grafted. As Professor Christopher Peterson writes, “Recording mortgages in MERS’s name and subsequent refusal to record assignments is not a technological innovation. On the contrary, it is an example of atrophy of the mortgage market’s information infrastructure and the rule of law.” Peterson, Foreclosure, supra p. 4, at 1404. (p. 26)
*SEE scholarly law journal article by Law Professor Christopher L. Peterson, "Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory" HERE