MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellant, v. LISA MARIE CHONG, LENARD E. SCHWARTZER, BANKRUPTCY TRUSTEE

MERS SMACKDOWN in NEVADA!!!

Dist. Ct. Case No. 2:09-CV-00661-KJD-LRL
Bankr. Ct. Case No. BK-S-07-16645-LBR

“This appeal arises from eighteen cases in which MERS filed motions for relief from stay in the Bankruptcy Court. In each case, either a party or the Bankruptcy Court raised the issue of whether MERS had standing to bring the motion.  In holding that MERS did not have standing as the real party in interest to bring the motion for relief from stay, the Bankruptcy Court determined that MERS was not a beneficiary in spite of language that designated MERS as such in the Deed of Trust at issue.  MERS seeks to overturn the Bankruptcy Court’s determination that it is not a beneficiary. However, the Court must affirm the Bankruptcy Court’s order under the facts presented because MERS failed to present sufficient evidence demonstrating that it is a real party in interest.”

4closureFraud
https://4closurefraud.wordpress.com/

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8 Responses to “MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellant, v. LISA MARIE CHONG, LENARD E. SCHWARTZER, BANKRUPTCY TRUSTEE”
  1. In 1999 these foreclosure procedures for Nevada were posted, along with an interactive map of the country.

    IN 1999 MERS Was Ready for Foreclosures!

    The took this down a year or so ago. Here’s the link:
    http://web.archive.org/web/20051122142851/www.mersinc.org/Foreclosures/index.aspx

    MERS Recommended Foreclosure Procedures for

    NEVADA

    Version 1.1, 11 November 1999

    Foreclosing a loan in the name of Mortgage Electronic Registration Systems, Inc. is something new in the foreclosure arena. However, when the role of MERS is examined, it becomes clear that MERS stands in the same position to foreclose as the servicer. MERS, like the servicer, will be the record mortgage holder. It is the deed of trust that gives MERS the authority to foreclose.

    To help make a smooth transition from foreclosing loans in the name of the servicer to foreclosing loans in the name of MERS, we have developed state by state recommended guidelines to follow. These guidelines were developed in conjunction with experienced foreclosure counsel in your state. We have been able to keep the MERS recommended procedures consistent with the existing foreclosure procedures. The goal of the recommended procedures is to avoid adding any extra steps or incurring any additional taxes or costs by foreclosing in the name of MERS instead of the servicer.

    MERS will continually review the guidelines and, if necessary, will issue revisions. The recommended guidelines to follow in your state are as follows:

    Deeds of Trust are used and are generally foreclosed non-judicially pursuant to a power of sale. Local counsel advises that a foreclosure can be brought in the name of MERS. It is important to note that the same procedures and state requirements that are required to be followed when foreclosing in the servicer’s name must still be followed when foreclosing in the name of MERS. The Trustee must still record the Notice of Default and Election to Sell the Property. After the expiration of the three-month period, the Notice of Trustee’s Sale is filed and published the same way it is when foreclosing in the name of the servicer except that Mortgage Electronic Registration Systems, Inc. (MERS) will be named as the foreclosing entity.

    Employees of the servicer will be certifying officers of MERS. This means they are authorized to sign any necessary documents, such as the Substitution of Trustee, as an officer of MERS. The certifying officer is granted this power by a corporate resolution of MERS. In other words, the same individual that signs the documents for the servicer will continue to sign the documents, but now as an officer of MERS. The substituted trustee is typically the foreclosing attorney.

    The agencies (Fannie Mae, Freddie Mac and Ginnie Mae) require a blank endorsement of the promissory note when the seller/servicer sells a mortgage loan to them. The note should remain endorsed in blank when the servicer commences the foreclosure. Therefore, the note should remain endorsed in blank when the foreclosure is commenced in the name of MERS.

    At the trustee sale, the certifying officer will instruct the trustee regarding the bid to be entered on behalf of MERS for the investor. This is the same process that is used when foreclosing in the servicer’s name. If it is the successful bid, then the trustee will be instructed to execute the Trustee’s Deed directly to the investor. Therefore, the MERS recommended procedure is the same as the current practice of bidding on behalf of the investor so that the Trustee’s Deed is issued directly to the investor. Because the MERS recommended procedure follows the same procedure that is used when the servicer forecloses in its name, no additional recording or transfer taxes are incurred by foreclosing in the name of MERS. Furthermore, there will not be a transfer tax when the trustee’s deed is issued directly to Fannie Mae, Freddie Mac, VA or HUD.

    Evictions are handled the same way they are handled when the servicer commences the foreclosure as the foreclosing entity. If it is an FHA-insured loan, then the deed is not recorded to the investor until after the eviction is completed. The eviction is conducted the same way it is conducted when the foreclosure is brought in the name of the servicer.

    If the debtor declares bankruptcy, the proof of claim should be filed jointly in the name of Mortgage Electronic Registration Systems, Inc. and the servicer. It is advised to file in both names in order to disclose to the court the relationship of MERS and the servicer. The address to be used is the servicer’s address so that all trustee payments go directly to the servicer, not to MERS. The Motion for Relief from Stay may be filed either solely in the name of MERS or jointly with the servicer. If MERS is the foreclosing entity, then it is MERS that needs the relief from the bankruptcy.

  2. From Livinglies…

    The significance of this decision is that it gives a simple explanation for the findings by dozens of other judges. Here are the salient points of this decision:

    1. Just because the document SAYS that an entity is the beneficiary doesn’t mean that is either true or dispositive. It is merely an allegation that is subject to the test of judicial process. The courts look to”Substance over form” rather than the other way around. Otherwise ANYONE could come in with paperwork of any kind and whether it was right or not, make a successful claim against you. [Litigation Hint: You only want to pay your real creditor, not some imposter. So you raise the question in a credible way and seek expedited discovery to show you are not trying to delay anything. After all the answers and paperwork you are seeking should have been in the possession of the forecloser before they initiated proceedings.)
    2. In the context of a motion for lift from stay, the burden is on the movant (MERS in this case) to establish to prove it is the real party in interest. This is a standing issue and can be raised at any time because standing is jurisdictional. In order to prove their status as real party in interest they must now file a pleading that contains the story of how they got to be the real party in interest.
    3. The Judge ruled that since MERS neither took in any money nor paid it out and wasn’t designed to do either, it could not be the real party in interest. A real party in interest is one who has advanced actual money in the transaction serves only as a bookkeeping service in a shell game designed to confuse or obscure the identity of the real party in interest.
    4. The same logic applied to its claim that it was a beneficiary. MERS produced no evidence that they ever advanced any money to fund the loan, that they were in position to lose money if the obligation was paid, or that they were in fact (as counsel had represented to the court) an authorized agent for the real creditor. An essential background or context to this ruling is that MERS refused to identify the real party in interest, who would be the real beneficiary.
    5. The breakthrough of this opinion was that a statement in a document, whether recorded or not, is not a proof of the matter asserted. The matter asserted was that MERS was a beneficiary and their only reason for saying so is that the deed of trust said it. While the Judge would give the benefit of a reputable presumption that a recitation in a document is true, the presumption is eviscerated merely by challenge based upon (a) information to the contrary, like a expert written signed and perhaps notarized report and (b) and references to the MERS’ Website where it quite explicitly says it will take no interest in the obligation,note or mortgage.
    1. At that point it is the burden of MERS to file a pleading that tells the story of why it is the real party in interest.
    2. Even before that pleading is filed, you seek expedited discovery and an expedited evidential hearing on this issue alone. Here is where the rubber meets the road. An attorney’s rhetoric is neither information nor evidence. An objection to the lawyer’s comments is appropriate seeking to have the lawyer contain his comments to either matters that are already in evidence (I.e, accepted by the judge and stamped as such by the clerk) or legal matters that would effective the quality or credibility of the evidence. Instead he will try to replace their burden of proof with rhetoric — the old two-step. If the lawyer wants his rhetoric treated as true, then he must become a factual witness, and probably quit the case because he is a material witness. In any event, if he chooses to represent facts to be accepted by the court into evidence, then like any other witness he must take the witness stand, be sworn in,establish his first hand knowledge (personal knowledge) of the events, how he came into possession of this knowledge and who else has knowledge regarding these documents. He would be subject to cross examination which is the subject to the lessons I am preparing for laymen and lawyers.

    PRACTICE NOTE: Here was a Judge who “got it.” He was alarmed that the wrong party was in court and curious as to why the right party was not present. That is the nub of your strategy and tactics. The potential invalidity or enforceability of the obligation, note or mortgage is a secondary, deeper issue that should arise only after it is clear that, as here, MERS did not have the note or other documents to show any standing and even admitted it, tried to withdraw its motion but was NOT ALLOWED TO WITHDRAW THE MOTION TO LIFT STAY ON THE TRUSTEE’S OBJECTION. 27 cases went down with this ruling. Why did MERS try to withdraw the motion? In my opinion it was because the argument had shifted from theoretical legal argument to hard facts.

    EVIDENCE NOTE: There are substantial differences between rhetoric (argument), information, and evidence. Those who know the differences are more likely to prevail than those who don’t.

    Of particular note is the Court’s mention that while the Deed of Trust NAMED MERS as beneficiary of the note, there was no mention of the identity of the CURRENT beneficial owner of the note. And perhaps of even greater significance is the failure to identity any successors in interest. This is the case in securitized obligations, notes, and mortgages even where MERS is NOT involved.

  3. Link –> Ruling may help homeowners trying to avoid foreclosure

    By JOHN G. EDWARDS
    LAS VEGAS REVIEW-JOURNAL

    Article on the ruling.

    My favorite part of the story is…

    Bill Uffelman, chief executive officer of the Nevada Bankers Association, predicted that most foreclosures will be able to proceed, because the “real mortgage owners and notes” will be able to be identified in most cases.

    “In the end in 99.9 percent of the cases, ownership of the note will be proved,”

    HA!

    4closureFraud

    • l vent says:

      That is what they want us to think. Sounds like they are using Psy-ops on the American people in order to intimidate us to not put up a fight by telling us we cannot win even if we fight for our homes.. .It is a very deceptive tool they are using to try and make people feel they are helpless and we will ultimately fail. I would like to see them create a clear chain of title from origination that proves beyond a shadow of a doubt who is owed money when these loans were fraudulently induced in the first place and they clearly intentionally destroyed the evidence by intentionally destroying the chain of title and the original blue ink notes to cover-up their crimes against humanity. They are full of alot of hot air and they are really scummy and very deceptive liars. The excuse I have heard from some attorneys that “this is what they did” is not valid and it is Unamerican and Unconstitututional to say the least. They are a proven fraud and an ongoing criminal enterprise. They are a corrupt, runaway train that will some day, hopefully sooner rather than later, have their day of reckoning.

  4. zurenarrh says:

    MERS, your bluff has been called!

  5. Lisa E says:

    Behold yet another shot at justice America!

    Oh Ye Judges! Wake up and pay attention! Yes, you in the back row!

    Lisa E.
    http://ForeclosureHamlet.org

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