Foreclosure Defense Florida

What is MERS? It Depends on Who You Ask…(And What End of The Elephant You Eat First)

A Great Post from Chink In The Armor:
What is MERS?   This question has confounded legal minds for the last five years.   After intense study over the last three years,   the answer seems to be:   It all depends upon who is asking and more importantly,   why.   Then and only then will they give you an answer.
A couple of cases in point.   When asked by the Nebraska State Banking Commission for the purposes of taxation,   MERS answered that in no uncertain terms does MERS have any involvement in the note.   They do not service notes,   they do not originate notes,   they have no beneficial interest in the note.
When asked in deposition in September of 2009,   RK Arnold,   the former CEO of MERS denied any interest in the mortgage itself.   Here are the pertinent passages:
Page 53 Line 10 Through page 54 Line 3
Q: Because,   in fact,   what you’re claiming is in fact ownership of the lien;   right?
A: No. We’re ““ we are the mortgagee in the land records and we have duties that go along with that.   And we carry out those duties according to what we’ve agreed to do
Q: Okay,   Is it not your testimony that MERS owns the lien?
A: I don’t know what that means.   We are the mortgagee in the land records.   We were made mortgagee by the borrower on a security instrument.
Then again on page 59 Line 14 through   Page 60 line 1
Q: Well,   let’s talk about the mortgagee interest.   Define that for me.
A: I think of the mortgagee interest as being just bare legal title.
Q: When you say bare legal title,   is that merely being the name in the land records?
A: Yes.
Q: That is not ownership of the lien which secures the payment of the promissory note?
A: No,   not in my mind.
So we know what they don’t do.   They don’t own the note,   they don’t own the lien.   Then just what do they do?
Not quite a year later,   during another deposition in April of 2010 for a court case in New Jersey,   William Hultman,   the #2 at MERS states the following:
Page 138 Line 17 through Page 140 Line 5
Q: And in describing any other kind of interest you have in the promissory note,   I think you were answering that in your view,   MERS does have an interest in the Ukpes’ promissory note,   is that correct?
A: What I’m saying is we have ““ we are the agents of the note holder holding title to the mortgage,   securing the repayment of the promissory note when the borrower pledges the property to them.
Q: When you’re saying the agent of the note holder,   as of March,   2008,   who held the note?
A: I don’t know.   I would have to look.
A: How do you know you’re the agent of the note holder as of March 13, 2008 if you don’t know who the holder is?
A: Because the terms of the mortgage provide that.
Q: The terms of the mortgage provide that you’re going to be the mortgagee of record as nominee for the lender,   correct?
A: And the lender’s successor it assigns.   So whenever the note transfers to whoever transfers,   we become the new agent of the new note holder.
Q: So if I understand you,   if the note is assigned from A to B to C to D,   you automatically under the terms of the agreement become D’s agent?
A: The borrower when he executes the mortgage has granted us in conveyance of the property in which we hold title to the security interest as agent for the benefit of the note holder and note holder successor it assigns,   so when they endorse and deliver the note to their subsequent purchaser,   then we become their nominee or agent.   It is a synonymous term.
Q: Is there an agreement between MERS and the successor in this case that you can continue to operate as their agent?
A: There’s two agreements.   There’s the membership agreement between us and our members and     there’s the mortgage itself.

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