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This MERS stuff gets more and more complex.

The more I research MERS and how they operate, the more I think this is a major problem waiting to take the whole banking industry down.  With thousands of members, ranging from FannieMae to small banks, the effect that MERS problems will have will be far reaching.

It is slowly becoming mainstream.  I just finished reading a very indepth article from February on the Bloomberg website.  The answer to my question, "Why hasn't this made the 'real' news?" is answered by the fact that it is far reaching and permiates many levels of business and government.

I am at a loss to see how this will be resolved without a total meltdown.

Heath Coker, Associate Broker
Robert Paul Properties
www.CapeGroup.com / capegroup@capegroup.com
508-274-5613  Licensed in MA
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@CapeGroup  Skype: heath.coker

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Comments

It is scarey that the paperwork has been played without more accountability yet if someone is not making their payments they do not have a right to stay in the property no matter where the note is held.

Posted by Susan Hilton, Texas Aggie Real Estate, College Station Bryan Texas Real Estate (CENTURY 21 Beal, Inc.) almost 12 years ago

This is a good observation.  But, if the courts allow a foreclosure because someone just says they are the correct party with right to foreclose, what kind of legal system do we have?  The courts are merely asking to see the papers that authorize the action.  In most cases, the MERS system has been operating electronically and so there is no record of who owns what.

Further, the assignments are done in blank, which means that a name is not on the assignment.  So if there is no name on the assignment, there is no actual owner.

And, if this type of trading of paper is being done (without records) it opens the door to all kinds of laundering and pilfering.

It is very complex with many ancillary issues.

Posted by Associate Broker Falmouth MA Cape Cod Heath Coker, Heath Coker Robert Paul Properties Falmouth MA (http://www.CapeGroup.com & http://www.REindex.com) almost 12 years ago

Heath,

I have about MERS in detail and It is very complex. I also feel that it is something that many people that have their mortgages in the system and people don't know how it works or are really even told.

Posted by Marcie Purcell, Realtor, Bucks & Montgomery Co PA (Better Homes and Garden Real Estate Cassidon Realty) over 11 years ago

The more I read, the more I am wondering how it is all going to work out.

Posted by Associate Broker Falmouth MA Cape Cod Heath Coker, Heath Coker Robert Paul Properties Falmouth MA (http://www.CapeGroup.com & http://www.REindex.com) over 11 years ago

MERS

Basic Corporate Information

  • MERS is incorporated within the State of Delaware.
  • MERS was first incorporated in Delaware in 1999.
  • The total number of shares of common stock authorized by MERS' articles of incorporation is 1,000.
  • The total number of shares of MERS common stock actually issued is 1,000.
  • MERS is a wholly owned subsidiary of MERSCorp, Inc.
  • MERS' principal place of business at 1595 Spring Hill Road, Suite 310, Vienna, Virginia 22182
  • MERS' national data center is located in Plano, Texas.
  • MERS' serves as a "nominee" of mortgages and deeds of trust recorded in all fifty states.
  • Over 50 million loans have been registered on the MERS system.
  • MERS' federal tax identification number is "541927784".

The Nature of MERS' Business

  • MERS does not take applications for, underwrite or negotiate mortgage loans.
  • MERS does not make or originate mortgage loans
  • MERS does not extend any credit to consumers.
  • MERS has no role in the origination or original funding of the mortgages or deeds of trust for which it serves as "nominee".
  • MERS does not service mortgage loans.
  • MERS does not sell mortgage loans.
  • MERS is not an investor who acquires mortgage loans on the secondary market.
  • MERS does not ever receive or process mortgage applications.
  • MERS simply holds mortgage liens in a nominee capacity and through its electronic registry, tracks changes in the ownership of mortgage loans and servicing rights related thereto.
  • MERS© System is not a vehicle for creating or transferring beneficial interests in mortgage loans.
  • MERS is not named as a beneficiary of the alleged promissory note.

Ownership of Promissory Notes or Mortgage Indebtedness

  • MERS is never the owner of the promissory note for which it seeks foreclosure.
  • MERS has no legal or beneficial interest in the promissory note underlying the security instrument for which it serves as "nominee".
  • MERS has no legal or beneficial interest in the loan instrument underlying the security instrument for which it serves as "nominee"
  • MERS has no legal or beneficial interest in the mortgage indebtedness underlying the security instrument for which it serves as "nominee".
  • MERS has no interest at all in the promissory note evidencing the mortgage indebtedness.
  • MERS is not a party to the alleged mortgage indebtedness underlying the security instrument for which it serves as "nominee".
  • MERS has no financial or other interest in whether or not a mortgage loan is repaid.
  • MERS is not the owner of the promissory note secured by the mortgage and has no rights to the payments made by the debtor on such promissory note.
  • MERS does not make or acquire promissory notes or debt instruments of any nature and therefore cannot be said to be acquiring mortgage loans.
  • MERS has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.
  • MERS does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).
  • MERS has no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.
  • The note owner appoints MERS to be its agent to only hold the mortgage lien interest, not to hold any interest in the note.
  • MERS does not hold any interest (legal or beneficial) in the promissory notes that are secured by such mortgages or in any servicing rights associated with the mortgage loan.
  • The debtor on the note owes no obligation to MERS and does not pay MERS on the note.

MERS' Accounting of Mortgage Indebtedness / MERS Not At Risk

  • MERS is not entitled to receive any of the payments associated with the alleged mortgage indebtedness.
  • MERS is not entitled to receive any of the interest revenue associated with mortgage indebtedness for which it serves as "nominee".
  • Interest revenue related to the mortgage indebtedness for which MERS serves as "nominee" is never reflected within MERS' bookkeeping or accounting records nor does such interest influence MERS' earnings.
  • Mortgage indebtedness for which MERS serves as the serves as "nominee" is not reflected as an asset on MERS' financial statements.
  • Failure to collect the outstanding balance of a mortgage loan will not result in an accounting loss by MERS.
  • When a foreclosure is completed, MERS never actually retains or enjoys the use of any of the proceeds from a sale of the foreclosed property, but rather would remit such proceeds to the true party at interest.
  • MERS is not actually at risk as to the payment or nonpayment of the mortgages or deeds of trust for which it serves as "nominee".
  • MERS has no pecuniary interest in the promissory notes or the mortgage indebtedness for which it serves as "nominee".
  • MERS is not personally aggrieved by any alleged default of a promissory note for which it serves as "nominee".
  • There exists no real controversy between MERS and any mortgagor alleged to be in default.
  • MERS has never suffered any injury by arising out of any alleged default of a promissory note for which it serves as "nominee".

 

Beneficial Interest in the Mortgage Indebtedness

  • MERS has no interest at all in the promissory note evidencing the mortgage loan.
  • MERS does not acquire an interest in promissory notes or debt instruments of any nature.

 

MERS As Holder

  • MERS is never the holder of a promissory note in the ordinary course of business.
  • MERS is not a custodian of promissory notes underlying the security instrument for which it serves as "nominee".
  • MERS does not even maintain copies of promissory notes underlying the security instrument for which it serves as "nominee".
  • Sometimes when an investor or servicer desires to foreclose, the servicer obtains the promissory note from the custodian holding the note on behalf of the mortgage investor and places that note in the hands of a servicer employee who has been appointed as an officer (vice president and assistant secretary) of MERS by corporate resolution.
  • When a promissory note is placed in the hands of a servicer employee who is also an MERS officer, MERS asserts that this transfer of custody into the hands of this nominal officer (without any transfer of ownership or beneficial interest) renders MERS the holder.
  • No consideration or compensation is exchanged between the owner of the promissory note and MERS in consideration of this transfer in custody.
  • Even when the promissory note is physically placed in the hands of the servicer's employee who is a nominal MERS officer, MERS has no actual authority to control the foreclosure or the legal actions undertaken in its name.
  • MERS will never willingly reveal the identity of the owner of the promissory note unless ordered to do so by the court.
  • MERS will never willingly reveal the identity of the prior holders of the promissory note unless ordered to do so by the court.
  • Since the transfer in custody of the promissory note is not for consideration, this transfer of custody is not reflected in any contemporaneous accounting records.
  • MERS is never a holder in due course when the transfer of custody occurs after default.
  • MERS is never the holder when the promissory note is shown to be lost or stolen.

MERS' Role in Mortgage Servicing

  • MERS does not service mortgage loans.
  • MERS is not the owner of the servicing rights relating to the mortgage loan and MERS does not service loans.
  • MERS does not collect mortgage payments.
  • MERS does not hold escrows for taxes and insurance.
  • MERS does not provide any servicing functions on mortgage loans, whatsoever.
  • Those rights are typically held by the servicer of the loan, who may or may not also be the holder of the note.

MERS' Rights To Control the Foreclosure

  • MERS must all times comply with the instructions of the holder of the mortgage loan promissory notes.
  • MERS only acts when directed to by its members and for the sole benefit of the owners and holders of the promissory notes secured by the mortgage instruments naming MERS as nominee owner.
  • MERS' members employ and pay the attorneys bringing foreclosure actions in MERS' name.

MERS' Access To or Control Over Records or Documents

  • MERS has never maintained archival copies of any mortgage application for which it serves as "nominee".
  • In its regular course of business, MERS as a corporation does not maintain physical possession or custody of promissory notes, deeds of trust or other mortgage security instruments on behalf of its principals.
  • MERS as a corporation has no archive or repository of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
  • MERS as a corporation is not a custodian of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
  • MERS as a corporation has no archive or repository of the deeds of trust or other mortgage security instruments for which it serves as nominee.
  • In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the promissory notes secured by the mortgage security instruments for which it serves as nominee.
  • In its regular course of business, MERS as a corporation does not routinely receive or archive copies of the mortgage security instruments for which it serves as nominee.
  • Copies of the instruments attached to MERS' petitions or complaints so not come from MERS' corporate files or archives.
  • In its regular course of business, MERS as a corporation does not input the promissory note or mortgage security instrument ownership registration data for new mortgages for which it serves as nominee, but rather the registration information for such mortgages are entered by the "member" mortgage lenders, investors and/or servicers originating, purchasing, and/or selling such mortgages or mortgage servicing rights.
  • MERS does not maintain a central corporate archive of demands, notices, claims, appointments, releases, assignments, or other files, documents and/or communications relating to collections efforts undertaken by MERS officers appointed by corporate resolution and acting under its authority.

Management and Supervision

  • In preparing affidavits and certifications, "officers" of MERS, including Vice Presidents and Assistant Secretaries, making representations under MERS' authority and on MERS' behalf, are not primarily relying upon books of account, documents, records or files within MERS' corporate supervision, custody or control.
  • Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS' authority and on MERS' behalf, do not routinely furnish copies of these affidavits or certifications to MERS for corporate retention or archival.
  • Officers of MERS preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS' authority and on MERS' behalf are not working under the supervision or direction of senior MERS officers or employees, but rather are supervised by personnel employed by mortgage investors or mortgage servicers.

MERS has asserted in consistent positions in various state and federal courts as to whether or not it is a holder of the promissory notes evidencing the debts that are supposed to be secured by the MERS mortgages. This fast and losse practice within the various court systems is now being vetted by alert defense attorneys and judges.       

This should be a pretty good start for those of you faced with a foreclosure in which MERS is falsely asserting that it is the owner of the promissory note.  Whether MERS is or was ever the holder is a FACT QUESTION which can be determined only by ascertain the chain of custody of the promissory note.  When the promissory note is lost, missing or stolen, MERS is NOT the holder

Posted by Kevin Lamson over 11 years ago
Always the best cntoent from these prodigious writers.
Posted by Arjay about 8 years ago

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