Matt Weidner – Fighting For The American People

Posts Tagged ‘jedti’

I tell my clients that though I am a licensed attorney, I feel  more like an Oncologist,  for I believe they have acquired, Cancer of the Mortgage.

And like any good Title doctor I turn to the cause of their malady, confirmed in the bloodwork, and inform them: toxic koolaide.

So it becomes my job to try and keep them alive, with hope and fight, until  I can find a cure.

I do have two big leads in my hope which, in turn, fuels my fight;  the lab report: terminal title defects, and the words of wisdom once uttered to a young law student by a torts professor some 30 years ago: “Greg, behind every failed investment model there usually lurks a failed legal model; failed either in design or execution.”

Not all mortgages have title defects, just the vast majority of those that have been infected since about 2002 with either a MERS complication and/or a strain of the securitized trust complex. These pathological agents were injected into what would have been an otherwise clean , healthy and clear chain of title to the real property, the collateral which was supposed to secure the notes given the lender for the money advanced.

By failed design:

Much has been written and will be written about the dysfunctional and hopelessly conflicted MERS configured mortgage which purposely separates the legal title to the mortgage from the legal title to the note (a practice in derogation of common law, common sense, and with no law or statute passed to authorize it), then cloaks the public record from knowing who the true owner is of your loan, including yourself. It’s the very antithesis of the once free, open, transparent playing field – our public property title registration system - upon which our real estate market economy was previously based and which used to be the gold standard that investors, worldwide could rely on and take faith in. How could such a American right to free and open property information be somehow ceded to or commandeered into the exclusive possession of a privately held corporation without one vote cast by a citizen of the republic? Suffice it to say that lenders themselves who relied on it have suffered defeats in court, and now, in Congress, a bill has been introduced to try and kill off this toxic title pathogen.

This “Innovative devise of modern commerce” seems well on its way to the Island of Misfit legal toys, or perhaps directly to oblivion as no none, going forward, wants to adopt it.

In failed execution:

Much has been written and will be written about the derivatives, new furry little creatures, sold to investors who accepted at face value their purring promises, that they were “mortgage backed securities” good stuff, or so said the securitized trust brokers who peddled them. But like Tribbles with teeth – sold to Klingons – they have bitten, hard. Suffice it to say that the industry’s own star witness recently testified (Kemp v. Countrywide)  in essence, that these investment securities really aren’t mortgage backed or even “note backed” due to a fundamental failure of note transfer: An omission followed - industry wide - as a foolish practice protocol even though it was in violation of their own contract documents and the terms and provisions of the governing UCC and REMIC regulations.

Hmm, looks like the investors drank some of that kool aide too, me thinks. They got “Cancer of the Mortgage un-backed security.” Then I think, to be fair, both homeowners and investors drank the bitter sweet beverage willingly, right? though not perhaps knowingly. But what about those birds that mixed it up, served it and now get hefty fees for providing the funeral services?

Last week the prognosis for one of my patients brightened a little when Judge Tepper in Florida’s 6th Judical Circuit granted my motion in the Stenz case to dismiss and in doing so ruled that the loan servicer (a sort of faceless proxy for the faceless unknown owner of the loan) had to reveal the identity of this owner of the loan and deraign its title to the loan from the very beginning of it to the day it filed the foreclosure action, in essence, to prove an unbroken chain of title to the loan.

Something as basic and simple as that.  And once I get that particular lab report back I suspect it may have some missing, broken, or pathologically invalid links.

I can’t wait.

Greg Clark,  Esq.

Clearwater: www.gregorydclarklaw.com

Founder of JEDTI

Jurists Engaged in Defending Title Integrity

The Fight for Homeowner’s Rights that we’re taking to the Florida State Capitol at 9:00 am tomorrow morning is not just about defending homeowner’s rights.  While that is key, it’s frankly much bigger than that. What we need judges, legislators and the public at large to understand is that the foreclosure crisis as it is now being played out in our country’s courts, presents a clear, present and grave threat to our most important branch of government….the judicial branch.

A Short Explanation of the Greatest Con in The History of Mankind And Why We’re Going to Tallahassee

This country and in fact the world economy was brought to its knees by the fraud and games played by the banksters. They conned the people when mortgages were originated, the institutions conned each other when the packaged and traded the pools of loans and they conned our retirement funds and the investment houses of our allies abroad when they packaged and sold these mulit-million dollar pools of consolidated fraud.

When the con was discovered, the federal government stepped in and payed off the investors because they were “too big to fail”….and the consters took more profits of the top of the bailouts.  When the feds provided money to rehabilitate the servicers and lenders (more than $75 billion to dates), they pocketed that money and are not using it to help the American people.  Now the lenders and servicers have moved the end product of their con into the courtrooms all across this state.  Rather than admit the problems they have and own up to the fraud and lies that have infected their entire industry-wide business practices, they are perpetuating the con artistry and creating still more fraud and deceit.

Document Mills filled with Robo Signers toil away 24 hours a day creating patently false or facially questionable documents based on instructions from the con artist lenders and the foreclosure mills they have retained.  The documents created in these mills almost never have any basis is known facts and are often patently incorrect.  When these documents are next formally or informally entered into court cases by attorneys, they become evidence.  The documents are not evidence that proves a right to foreclose….they’re the final piece of documentary evidence of an industry that went wildly out of control.  For too long, judges relied on this “evidence” as the basis to throw good homeowners out of their homes, but that is changing.  Defense attorneys have caught onto the patterns and practices of fraud and deceit and now judges are beginning to see this evidence not as evidence to support foreclosure, but Evidence of the Greatest Con In The History of Mankind.

We all need to support our judges….we all need to do our jobs better.  Preserve the evidence.  Hire court reporters for every single hearing. Examine all evidence carefully and make proper legal objections to that evidence.  Understand the rules that apply in court and the case law and statutes that govern our courts then make them apply in court cases.  Recently Judge Rondolino examined all the case law surrounding the introduction of affidavits in foreclosure cases and came to a conclusion I had months ago….the affidavits admitted in virtually every foreclosure case are completely inadmissible and cannot be used to grant foreclosure.  Read the transcript of this hearing here.  This issue first came to light when a third year law school student working with me, Michael Fuino, examined the process and questioned the basic assumptions we had all been operating under….the point is it took a third year law school student to catch an issue that we’ve all been incorrectly working under for years and which affects literally million of cases across this country.

The fast-food, Persian bazaar manner in which affidavits, assignments and other evidence are created and presented in our courts and the unfortunate way in which this “evidence” is accepted represents a fundamental breakdown in the ability of our courts to dispense justice.  Granting foreclosure is not a business process.  The Grant of Foreclosure is a judicial act and it deserves the same respect, dignity and thoughtfulness as any other judicial act.

Our courts are not assembly lines obliged to rapidly dispense Orders at the demand of Con Artists and their Lawyers.  Our courts are the last bastion of truth and hope and dignity in a crumbling world.  When a judge puts on that judicial robe he or she wields the awesome power of the Constitution of the United States and of the State he or she serves.  When the processes and evidence placed before our judges is so perverted that we lose sight of the awesome power we’ve instilled in our courts, then we’ve lost our way….and that cannot be allowed to continue.

Below is Greg Clark’s compelling video that explains how these processes are being used to perpetuate this fraud and below that are talking points that he will deliver in Tallahassee on Wednesday April 21 in the Capitol.  Together we will turn this around.  Justice demands it.

What’s wrong with MERS?

The issue I argue is that a ”Nominee” does not have the power or authority to assign. It is a very limited, really the lowest, form of agency.  They only have what is expressly granted them in the mortgage. The MERS mortgage does not grant MERS the authority to sell or transfer the mortgage loan nor the power to assign its duties as nominee. In fact the MERS mortgage itself fails as a conveyance for being indeterminate with its language being hopelessly vague and ambiguous and because splitting a mortgage away from its note, bifurcation, is not allowed at common law without rendering the mortgage a nullity. Furthermore, although it might be swallowed that MERS was agent enough to represent the original lender how can it possibly act as agent for subsequent note holders? an agency is not assignable. Further, how can there even be an agency created in the first instance between MERS and the original lender by virtue of the mortgage?: it was not signed
by either the principal or the agent, only the borrower.

In short, the MERS mortgage is legally problematic and to me fails as an effective, valid conveyance in the first instance. Please take the time to read the Kansas Supreme Court decision in the Landmark v. Kesler case. Google: Kansas Kesler MERS. Also read the appellate opinion which was affirmed on appeal to the Kansas Supreme Ct.   We (JEDTI) have this issue before the 5th DCA in the Taylor Appeal (George Gingo’s case). it is fully briefed and ready for oral argument which we hope is scheduled for early summer.  MERS was and remains instrumental in cloaking and making invisible the real note holder, the owner and real party in interest, the guy we really owe the debt to. In essence using the MERS as a strawman lien holder prevents any meaningful, reliable title search to determine who is the right party to payoff; MERS does not take payoff checks, yet it holds the mortgage.

I believe its use has rendered our public title registration system useless as a means of verifying and assuring clear title. If the note owner/holder is the true lienholder then the creation and use of MERS has created the invisible lienholder which is the antithesis to why we have a public record in the first place. It’s use has also deprived our local county governments of recording revenue as the note holders/owners simply transfer/assign “electronically” to each other within this privately controlled matrix.

Imagine, if the law wants to abide the concept of MERS and give it a legal pass then why can’t I formed my own company and called it “DERS” Deed Electronic Registration System”, what’s good for title to mortgages should be good for title to the real estate itself: DERS would hold legal title to a deed to real estate as “nominee” and all subsequent transfers could be done electronically from sellers to buyers with out the need to record, all done privately, all out of site and control of the people, the government. Imagine the revenue the county and state would miss out on. Of course you would have to be a fee paying member to join my private, closely held company. Like starting my own little country with its own private tax collecting system, controlling economic information.

America’s economic vibrancy has always been based on its freedom of title information, neutrally kept in an egalitarian public record, and the rule of law, which cedes no monopolistic power, cloaked and hidden, over our property rights. Trusting our public record, giving it over to select, privately motivated, and unelected entities, does not promote a fair and level playing field for all investors nor a safe place to write title insurance to protect those investors. It seems pretty undemocratic at best.

And at worst seems to fit glove in hand with an unregulated Wall street as one of the reasons for, or indeed the very catalyst itself that enabled our economic meltdown.

Foreclosure Fraud Fighter, Founder of JEDTI (Jurists Engaged in the Defense of Title Integrity) and Friend Greg Clark, a Clearwater attorney has been ranting away like a madman about “MERS Splitting” and “Produce the Original Note”….here’s the thing about madmen…..

When they’re brilliant, hard working and careful with their facts, sometimes they need to be listened to.

One of Clark’s main issues has to do with the fact that on the one hand Plaintiffs toss promissory notes into the court file then ask that they be treated with such dignity and respect that nothing else be questioned.  On the other hand, we find that Courts around the state are routinely handing promissory notes back to Plaintiffs and law firms.

The Fourth Circuit Appeals Court opinion, Elliott v. Aurora first published here describes how courts in Broward County, routinely hand the promissory note back over to Plaintiffs right after Summary Judgment is granted…that’s obscenely improper and is a violation of a litigant’s fundamental procedural rights…if the Defendant appeals, the evidence used to convict him is back in the hands of the Plaintiff.

You see in one case, my Motion to Dismiss was granted because the endorsements on the face of the note are questionable.  The thing is, according to the legal reasoning advanced by the Plaintiffs, and routinely accepted by courts is that promissory notes are negotiable instruments….that means they are to be treated like $100,000 or $500,000 bills…

You’re now starting to see title insurance commitments requiring…as a condition of issuing new title insurance..to have the original note in possession or proof that it was destroyed as a condition of issuing the title insurance…such requirements are becoming increasingly common….and they’re based in part on the following Florida Supreme Court case….which is still good law:

SCOTT т. TAYLOR.

(Supreme Court of Florida. Feb. 6, 1912.)

A mortgage executed as security for the payment of a negotiable promissory note is a mere incident of and ancillary to such note. When it comes to the payment thereof, the rights of the parties thereto, as well as of third persons, are governed by the rules relating to negotiable paper; in other words, payment to any one other than the holder of the negotiable instrument is at the risk of the payer, and is binding upon the holder of the paper only where express or implied authority to receive such payment is established by the person making the same. Hence payment of a negotiable note secured by mortgage by the mortgagor or his grantee, where made to the original mortgagee who is not in possession of the note and mortgage, is not binding upon an assignee thereof before maturity who was in possession of the papers at the time of such payment, unless he had expressly or impliedly authorized such payment.

The duty of a maker of a negotiable note to see that the person to whom he pays it has it in his possession before making the payment is not affected by the fact that the note was on its face payable at the office of the person to whom he makes the payment.

The maker of a negotiable promissory note can satisfy it only by payment to the owner at the time of such payment, or to such owner’s authorized agent. If the recipient of the money is not actually authorized, the payment is ineffectual, unless induced by unambiguous direction from the owner, or justified by actual possession of the note. This rule applies generally to all negotiable paper, independently of the existence of any mortgage or other security.

TAYLOR, J. The appellee Emma H. Tay: lor filed her bill In equity in the circuit court of Escambla county for foreclosure of mortgage against the appellant J. Conrad Scott and his wife, Alice K. Scott, and the Pensacola Home & Savings Association, a corporation.

The bill alleged, In substance: That the said J. Conrad Scott, being Indebted to D. Hale Wilson In the sum of $400, executed and delivered to the said D. Hale Wilson his promissory note, whereby he did promise to pay to the order of the said D. Hale Wilson •?400, with Interest at the rate of 8 per cent, per annum from date until paid, interest payable quarter annually, said principal sum to be paid two years after the date of said note. By the terms of said note it was provided that It should be payable at the office of said D. Hale Wilson & Co., Pensacola, Fla., and that after default In payment, and the note should have been placed In the hands of an attorney for collection, the maker would pay an attorney’s fee of 5 per cent. If paid before suit, and 10 per cent, if paid after suit and all costs of collection. That said note is long since past due aud Is unpaid, and before its maturity for a valuable consideration the same was Indorsed and transferred to your oratrlx, Emma H. Taylor, by the said D. Hale Wilson, aud she Is now the owner and holder of same. That to secure the payment of the said note the said J. Conrad Scott and his wife, Alice K. Scott, on the same day, March 24, 1906, did execute and deliver to the said D. Hale Wilson their certain mortgage deed as security for the payment of the said note, thereby conveying to the said D. Hale Wilson, his heirs and assigns, the following real estate situated in the city of Pensacola, Escambla county, Fla., to wit: Lots 3, 4, and 5, in. block 170, New City tract, according to шар published by Thos. C. Watson in 1SS4.

By the terms of said mortgage it was provided: That it was Intended to secure the payment of the promissory note above mentioned, and that the mortgagors would keep perfect and unimpaired the security thereby given, and that the said Indebtedness covered by said mortgage should become immediately due and said mortgage foreclosable for all sums secured thereby, if the said Indebtedness or any part thereof or the interest or any Installment thereof should not be paid according to the terms of the said note, and that, if foreclosure of said mortgage should be had or a suit to foreclose same be rightfully begun, the mortgagors would pay all costs and expenses of said suit, including an attorney’s fee to the attorney of the complainant foreclosing of $15, and 10 per cent, upon the amount decreed to the complainant, which costs and fees should be included in the lien of said mortgage and In the sum decreed upon foreclosure. That said mortgage was duly recorded on the 20th day of March, 1906, in the clerk’s office of Escambia county. That at the time of the Indorsement, transfer, and assignment of snld nromfsporv note to your oratrlx, Emma H. Taylor, the said D. Hale Wilson transferred and assigned me said mortgage to your oratrix and delivered to her said note and mortgage, and said note and mortgage have been In her possession ever since. That subsequent to the making and recording of said note and mortgage, to wit, on or about March 3, 1909. and long subsequent to the time when вяГЯ note and mortgage had been assigned and Indorsed to your oratrix by the said D. Hale Wilson, and at a time when the said note and mortgage were not in possession of said D. Hale Wilson, but were in possession of your oratrix, the said D. Hale Wilson executed what purported to be a cancellation of said mortgage, and procured same to be entered upon the mortgage cancellation records of Escambia county, Fia., but at the time of the execution of said cancellation the said D. Hale Wilson vras not the agent of your oratrix or authorized to act for her. That the amount due upon the said note and mortgage was reduced by a payment made on July 24, 1908, of $200, but that the balance with interest and attorney’s fees is still due and unpaid. That said cancellation was executed and placed upon record without the knowledge or consent of your oratrix, and without the payment to her of any sum whatever, and she never knew the same until during the summer of the year 1910, when her attention was called to the fact by some person who had examined the records, and found such cancellation apparently of record. The bill expressly waives oath to the answer of the defendant.

The defendants J. Conrad Scott and his wife answered the bill, In which they admit the execution and delivery of the note and mortgage as alleged, but deny that the same is long past due and unpaid, and disclaim any knowledge of the indorsement and transfer of the same to the complainant, or that she is now the owner and holder of said note. The answer further alleges that the defendants on or about March 3, 1909, without any knowledge that the said note and mortgage had been assigned and indorsed to complainant by the said D. Hale Wilson, and without any knowledge that the said note and mortgage was not in the possession of said D. Hale Wilson, and without any knowledge that the said note and mortgage was in the possession of complainant as alleged, paid to said D. Hale Wilson the amount of the said mortgage, and secured a cancellation from the said D. Hale Wilson which was duly recorded upon the mortgage cancellation records of Escambia county. The answer disclaims any knowledge as to whether the said D. Hale Wilson was or not the agent of the complainant And the answer further alleges that the whole of said Indebtedness has been paid, and denies that any part of the original due as alleged. The answer further alleges that until about the time of the filing of complainant’s bill and long after same had been paid they had no knowledge whatever that the said note and mortgage had been sold and transferred by the said D. Hale Wilson to complainant as alleged in her bill, and that such knowledge was acquired after the said note and mortgage had been fully paid and satisfied as hereinbefore alleged.

The answer further asserts that, by reason of complainant’s failure to notify defeudants of said acquisition and ownership of the said note and mortgage as alleged, complainant constituted said D. Hale Wilson as her agent, and the payments so made by defendant on account of the said note and mortgage to the said D. Hale Wilson ae aforesaid were made to complainant’s agent for the use and benefit of complainant. The answer further asserts that the said note contained the statement that “this note secured by mortgage,” and that the note and the mortgage were part and parcel of but one and the same transaction, and that by reason of the conditions contained in the mortgage as to the mortgagor keeping the premises insured for the benefit of the mortgagee, and keeping the taxes on the property paid up, and that, In default In the mortgagor in these respects, the mortgagee might pay the same upon which the mortgage Hen should extend to and cover all such payments for insurance and taxes, and that the said mortgage and all sums secured to be paid thereby should at once become due and foreclosable in the event of default in the payment of any sum due thereon or in the payment of any Installment of interest when due, and the covenant in said mortgage to pay attorney’s fees of $15 and 10 per cent, of the amount duo for principal and interest, all rendered and made the said note nonnegotiable, and that the same was merely assigned by said D. Hale Wilson to complainant, who took the same subject to all equities existing between the said Wilson and defendants, and, because of the assignment of said nonnegotiable note and mortgage to complainant by said Wilson, it became and was the duty of complainant to give the defendants due notice of such assignment, that defendants might make their future payments to complainant. The cause was heard before the chancellor on the bill, and exhibits of the original mortgage and note, and the answer of the defendants, and a final decree rendered in favor of the complainant and against the defendants foreclosing the said mortgage for the total sum of $390.06, inclusive of interest and attorney’s fees, and adjudging the mortgaged property to be sold to pay the same. From this final decree, the defendant J. Conrad Scott took his appeal* to this court, and assigns the said decree to be error.

the payment of a negotiable promissory note Is a mere incident of and ancillary to such note. When it conies to the payment thereof, the rights of the parties thereto, as well as of third persons, are governed by the rules relating to negotiable paper; in other words, payment to any one other than the holder of the negotiable instrument is at the risk of the payer, and is binding upon the holder of the paper only where express or implied authority to receive such payment is established by the person making the same. Payment of a negotiable note secured by mortgage by the mortgagor or his grantee, where made to the original mortgagee who is not In possession of the note and mortgage, is not binding upon an assignee thereof before maturity who was In possession of the papers at the time of payment, unless he had expressly or impliedly authorized such payment. Smith v. First Nat. Bank of Cadiz, Ohio, 23 Okl. 411, 104 Рас. 1080, 29 L. R. Л. (N. S.) 676, and authorities cited in notes, 138 Am. St. Rep. 850.

The duty of a maker of a negotiable note to see that the person to whom he pays it has It In his possession before making the payment is not affected by the fact that the note was on its face made payable at the office of the person to whom he makes the payment Powers v. Woolfolk, 132 Mo. App. 354, 111 S. W. 1187; Hoffmaster v. Black, 78 Ohio St. 1, 84 N. E. 423, 21 L. R. A. (N. S.) 62, 125 Am. St. Rep. 679, 14 Ann. Cas. 877; Baxter v. Little, 6 Mete. (Mass.) 7, 39 Am. Dee. 707.

The maker of a negotiable promissory note can satisfy it only by payment to the owner at the time of such payment, or to such owner’s authorized agent If the recipient of the money is not actually authorized, the payment is ineffectual, unless Induced by unambiguous direction from the owner or justified by actual possession of the note. This rule applies generally to all negotiable paper, Independently of the existence of any mortgage or other security. Marling v. Nonimensen, 127 Wis. 363, 106 N. W. 844, 5 L. R. A. (N. S.) 412, 115 Am. St. Rep. 1017, 7 Ann. Oas. 364 ; Baumgartner v. Peterson. 93 Iowa, 572, 62 N. W. 27 ; Burhans v. Ilutcheson, 25 Kan. 625, 37 Am. Rep. 274; Birket v. El ward, €8 Kan. 295, 74 Рас. 1100, 64 L. R. A. 568, 104 Am. St. Rep. 405, 1 Ann. Cas. 272; Smith v. Lawson, 18 \V. Va. 212, 41 Am. Rep. 688 ; Carpenter v. Longan, 16 Wall. 271, 21 L. Ed. 313; Swift v. Bank of Washington, 114 Fed. 643, 52 C. O. A. 339.

Under the rules of law governing negotiable Instruments as announced In the foregoing authorities, we think the decree of the court below appealed from in this case was proper.

• The defendant knew that he had made and delivered to D. Hale Wilson a negotiable promissory note that was transferable by indorsement to another, and yet, without Inquiring as to such transfer and without production of the note and mortgage, he pays the amount due upon such note to Wilson, the original payee, when such note had been transferred to the complainant and was then held and owned by her, and without any delegation of authority from her to said Wilson either express or implied to receive such payment Under these circumstances, such payment to Wilson was unauthorized, and the complainant Is not affected thereby. There is no merit in the contention that the conditions expressed in the mortgage rendered the note nonnegotiable. Neither Is there anything disclosed by the circumstances set forth in the pleadings from which It can legally be Implied that Wilson was authorized to act as agent for the complainant in receiving payment of this note from the defendant

Finding no error, the decree appealed from Is hereby affirmed at the costs of appellant

WHITFIEbD, C. J., and SHACKLEFORD, COCKRELL, and HOCKER, JJ., concur.