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Mers Ny Judge Gives Verdict - Illegal

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http://market-ticker.org/akcs-www?post=179886

I was wondering how long this would take.... it appears that all the crooners that have appeared in front of Congress and elsewhere have finally had their heads cut off by.... as I expected..... a bankruptcy Judge.

Bankruptcy Judges are federal judges. The Federal bench tends to have a very low tolerance for bullcrap, although they do get bamboozled and fall prey to political arguments from time to time, like any body composed of humans. Nonetheless if you want to find justice, you usually will have a better shot at it in a Federal courtroom than in a State one. This means that if you're trying to play a game, you want to be in State court - but if you're looking for facts and logical analysis, you want to be in Federal court.

The case at bar here is one in which the debtor actually lost his motion to debar the creditor from lifting a bankruptcy stay. How, you might ask, can MERS get cornholed from a win? Simple: The debtor lost not on the merits but on res judicata, the legal principle that says "what's decided is decided." In this case (if I'm reading this correctly; I don't have the entire case history) the foreclosure hearing was held and decided before the debtor filed bankruptcy.

But the judge was obviously ****ed off and tired of the games. He could have issued a one-page order saying "go away." He didn't. Instead, he analyzed the entire MERS edifice and found that it does not comply with NY State Property Law.

Oops.

From the memorandum, at the top:

The Court recognizes that an adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders which do business with MERS throughout the United States. However, the Court must resolve the instant matter by applying the laws as they exist today. It is up to the legislative branch, if it chooses, to amend the current statutes to confer upon MERS the requisite authority to assign mortgages under its current business practices. MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage recording process. This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.

In other words, take your "too big to be judged unlawful" argument and shove it up your ****!

On to the body of the decision:

By MERS’s own account, it took no part in the assignment of the Note in this case, but merely provided a database which allowed its members to electronically self-report transfers of the Note. MERS does not confirm that the Note was properly transferred or in fact whether anyone including agents of MERS had or have physical possession of the Note. What remains undisputed is that MERS did not have any rights with respect to the Note and other than as described above, MERS played no role in the transfer of the Note.

Here is the beginning and end of the problem. MERS cannot prove that the note was transferred properly because it doesn't have it, never had it, and never touched it. It is simply a database.

Therefore, any "assertion" that the note was assigned is hearsay and inadmissible. MERS cannot form the foundation to be able to admit these alleged facts as evidence as you can't lay a foundation without the physical evidence necessary to do so and MERS is bereft of actual knowledge, since once again it never saw the note, never held the note and never negotiated the note. Therefore, all it has is a database entry which under long-standing legal precedent is a nearly-perfect example of hearsay and is thus inadmissible.

However, there is nothing in the record to prove that the Note in this case was transferred according to the processes described above other than MERS’s representation that its computer database reflects that the Note was transferred to U.S. Bank. The Court has no evidentiary basis to find that the Note was endorsed to U.S. Bank or that U.S. Bank has physical possession of the Note. Therefore, the Court finds that Movant has not satisfied its burden of showing that U.S. Bank, the party on whose behalf Movant seeks relief from stay, is the holder of the Note.

And that's exactly what the court held.

The Movant’s failure to show that U.S. Bank holds the Note should be fatal to the Movant’s standing. However, even if the Movant could show that U.S. Bank is the holder of the Note, it still would have to establish that it holds the Mortgage in order to prove that it is a secured creditor with standing to bring this Motion before this Court. The Movant urges the Court to adhere to the adage that a mortgage necessarily follows the same path as the note for which it stands as collateral.

Oh oh. Here's the argument I've repeatedly raised - that MERS, by its very operation, intends to and does severs the linkage between the mortgage and the note, and once that has happened it is generally impossible to re-join them!

The primary problem MERS has here is that as a "nominee" it must have a specific agency right in order to act. In this case, in order to assign a mortgage it must have some sort of power of attorney specific to the note in question. But MERS has no such thing, as it's just a database. As the court explains:

Judgement and more at the link.

Luckily the markets have taken this decision well.

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http://www.zerohedge.com/article/judge-finds-mers-has-no-right-transfer-mortgages

There was a time when news, especially very bad news, moved stocks. The last time that occurred was in the middle of 2009, before most robots had any idea just how massive the chairsatan's schizoid break with reality was. Now, that the appropriate sociopathology is fully priced in, bad news tends to have an even more profound upside impact on stocks than good news, as it guarantees that the Zimbabwe stock market will be upon us far sooner than if the economy were to have to go through another inter-QE episode. Which is why the just released news out of US Bankruptcy Judge Robert Grossman of Central Islip, New York, that MERS lacks rights to transfer mortgages will likely send the entire S&P circuit breaker up.

From Bloomberg:

“Merscorp Inc., operator of the electronic-registration system that contains about half of all U.S. home mortgages, has no right to transfer the mortgages under its membership rules, a judge said...U.S. Bankruptcy Judge Robert E. Grossman in Central Islip, New York, in a decision he said he knew would have a “significant impact,” wrote that the membership rules of the company’s Mortgage Electronic Registration Systems, or MERS, don’t make it an agent of the banks that own the mortgages..."

“MERS’s theory that it can act as a ‘common agent’ for undisclosed principals is not supported by the law,” Grossman wrote in a Feb. 10 opinion. “MERS did not have authority, as ‘nominee’ or agent, to assign the mortgage absent a showing that it was given specific written directions by its principal.”

“MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage-recording process,” Grossman wrote. “The court does not accept the argument that because MERS may be involved with 50 percent of all residential mortgages in the country, that is reason enough for this court to turn a blind eye to the fact that this process does not comply with the law.

“An adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders which do business with MERS throughout the United States,” Grossman wrote. “It is up to the legislative branch, if it chooses, to amend the current statutes to confer upon MERS the requisite authority to assign mortgages under its current business practices.”

“Without more, this court finds that MERS’s ‘nominee’ status and the rights bestowed upon MERS within the mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage,” the judge wrote. “MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best.”

Zerohedge's take on it.

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  • 276 Brexit, House prices and Summer 2020

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