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Foreclosure Defense Florida

MERS’ Written Responses to Congressional Questions

I find the discussion regarding MERS’ lack of involvement in the securitization process so compelling….



One Comment

  • litgant says:

    There are questions not asked and not answered and are of utmost importance here:

    Q. If a promissory note does not contain MERS as a nominee, does it have any legal authority to make an assignment of the note if it NEVER had assignment and possession and paid consideration for it?

    Q. If a mortgage names MERS as nominee but the lender is not a member of MERS and the mortgage is not registered with MERS, is there an agency relationship between MERS and the lender, although the lender has not entered into a membership and agency agreement?

    I have asked these questions to MERS and they refuse to answer. Wonder why? Answering these may indicate millions of assignments by these robo-illegal assignment signers, would be voidable.

    In Florida many lenders used a mortgage form created by Fannie Mae and Freddie Mac like (3520 1/01-adjustable rate note and 3010 1.01 (02/01/07). These Fannie Mae and Freddie Mac forms named MERS as nominee. These forms were used by lenders who were not members of MERS and the mortgage was not and never were Fannie Mae or Freddie Mac. At issue here, is how MERS can claim it is the legal holder of the mortgage while someone else holds the note and yet these have not been split? And, neither Fannie Mae or Freddy Mac every came into possession of the mortgage and note?

    In the case where MERS is the nominee and the lender was not a member, and NEVER registered the mortgage with MERS, it may be a Quiet Title will need to be filed to clean up the title.

    Why should MERS have the authority to make an assignment of a mortgage and the note to which they were never in a capacity as a holder or owner of the mortgage or note? They cannot assign what they do not possess. They can only assign what they possessed.

    In many cases I see no solution but a Quiet Title action. But many lawyers for the defendants are trying to win their cases and are not addressing the root of this snake. They are refusing to consider Quiet Title actions. Why? I am not sure.

    If a mortgage and note are not registered with MERS, and the PSA of a securitized pool requires all such in the mortgage pool to be registered with MERS to be considered a qualified asset to back the securities being sold, then any action by MERS or any trustee for a securitized trust would have no standing to bring a foreclosure on behalf of the certificate holder investors. Judges need to rule on the points of law called “standing and capacity”.

    It is the duty of the investors to make sure all mortgages and notes in the mortgage pool against which they purchase their certificiates, are totally conformable to the PSA. And where they are not, they should demand they be put back. When they are put back, the trustee lacks any legal authority to act as a foreclosing agent for the trust and the investors. Any judge in the nation who determines the mortgage and the note were not properly securitized according to the PSA and should be put back, should dismiss the complaint with prejudice against that plaintiff and also against MERS.

    Just my opinion. Not intended to be legal advice. Well, yes I have my own legal opinion but that does not make it legal advice. If it were me and a mortgage and or note did not conform to a PSA, I think I would find a lawyer to start a Quiet Title action against the original lender and MERS. And if the current defense lawyer would not do it, it is time to find another one who will.

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