KABOOM | HENDRICKS v. U.S. BANK, BofA – MI Court Destroys MERS Finds “MERS Transferred Nothing” with Bonus Securitization FAIL

“Failure to strictly comply with the terms of the PSA means that the loan at issue was never properly transferred to the trust”

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Not only did the Honorable Archie C. Brown destroy MERS, he discusses the PSA and securitzation failures in great detail…

From the ruling…

JAMES HENDRICKS, et al.,
Plaintiffs,

v

US BANK NATIONAL ASSOCIATION –
AS SUCCESSOR TRUSTEE TO BANK
OF AMERICA, et al.,
Defendants.

OPINION AND ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANT’S MOTION FOR SUMMARY DISPOSITION AND
GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION

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The contention that the contract between MERS and First Franklin provided MERS with an ownership interest in the note, as the court in RFC held, stretches the concept of legal ownership past the breaking point. The Legislature used the word “owner” because it meant to invoke a legal or equitable right of ownership. Viewed in that context, although MERS owns the mortgage, it owns neither the debt nor an interest in any portion of the debt, and is not a secondary beneficiary of the payment of the debt.

Plaintiffs in RFC also argued that MERS had the authority to foreclose by advertisement as the agent or nominee for the Lender, who held the note and an equitable interest in the mortgage. The court in RFC disagreed, holding that it  failed under the statute because the statute explicitly requires that, in order to foreclose by advertisement, the foreclosing party must possess an interest in the indebtedness. MCL 600.3204(1)(d). Thus, the Legislature’s choice to permit only servicing agents and not all agents to foreclose by advertisement must be given effect.

The court in RFC opined that the separation of the note from the mortgage in order to speed the sale of mortgage debt without having to deal with all the “paper work” of mortgage transfers appears to be the sale reason for MERS’ existence. The flip side of separating the note from the mortgage is that it can slow the mechanism of foreclosure by requiring judicial action rather than allowing foreclosure by advertisement. To the degree there were expediencies and potential economic benefits in separating the mortgagee from the noteholder so as to speed the sale of mortgage-based debt, those lenders that participated were entitled to reap those benefits. However, it is no less true that, to the degree that this separation created risks and potential costs, those same lenders must be responsible for absorbing the costs.

Defendants argue that RFC is not on point because First Franklin pooled and transferred its interest in the loan, the Mortgage and Note, into a securitized trust over which USB became the trustee. First Franklin endorsed the Note to the order of First Franklin Financial Corporation, which thereafter endorsed the Note in blank, transferring it to USB and or USB’s agents; Exhibit A to Plaintiff s Brief.

Defendants further argue that MERS, as First Franklin’s nominee, drafted a recordable Assignment of Mortgage assigning the Mortgage together with the Note and all other obligations secured by said Mortgage to USB, as trustee, dated December 17,2009.

Defendants conclude by stating that on December 30,2009, the Assignment was recorded in the Washtenaw County Register of Deeds, and therefore, as a result of all of these actions, USB was the record owner of both the Mortgage and the Note in advance of any foreclosure.

Plaintiff’s in response, request that this Court declare that USB, successor to the trustee First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Securities, Series 2006-FF18 has no interest in the mortgage loan that is the subject matter of this action and cannot foreclose, judicially or otherwise, that loan. Plaintiffs’ contend that USB never actually received ownership of the Plaintiffs’ mortgage loan because the loan was not ever properly transferred to USB according to the terns of the First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FF18’s Pooling and Service Agreement (“PSA”), and the assignments that occurred in this case did not follow the law of trusts in the State of New York to validly transfer the trust to USB. The Court was provided a copy of the PSA at an earlier hearing for its review. The Court finds, upon reviewing the PSA, that the trust was created on December 1, 2006 and had a closing date of December 28, 2006. PSA pages 36-37. The closing date establishes when the trust assets musts be transferred to the trust.

Merrill Lynch Mortgage Investors, Inc., is the depositor. PSA p. 38. Pursuant to Section 2.01(A), the depositor has to deliver the mortgage loan to the trustee, in this case USB. Plaintiff contends that there should be an endorsement from First Franklin Financial Corp to Merrill Lynch, and an endorsement from Merrily Lynch to the trustee (originally LaSalle Bank National Association) or, at least an endorsement in blank by Merrill Lynch. The Court finds that there is only an endorsement from First Franklin, a division of National City Bank, to First Franklin Financial Corp, then an endorsement by First Franklin Financial Corp in blank. Plaintiffs’ Exhibit B. PSA Sec. 201(A) requires that the Mortgage Note shall include all intervening endorsements showing a complete chain of title. Plaintiffs’ Exhibit A. Since the Note never passed to Merrill Lynch the trust could not have validly received it.

PSA Sec. 201(E) requires the depositor to deliver originals of any intervening assignments of the Mortgage,with evidence of recording thereon. Plaintiffs’ Exhibit A. The record before the Court is that the only assignment of the mortgage that was recorded was the assignment from MERS to USB, as trustee. Plaintiffs’ Exhibit C. However it is  clear from the record that the mortgage note was actually transferred from the originator ofthe loan, First Franklin, a division of National City Bank, to First Franklin Financial Corp. The Court finds that the transfer of the mortgage note from First Franklin to First Franklin Financial Corp also transferredthe underlying mortgage. However, this transfer was never reduced to a mortgage assignment that was recorded with the Washtenaw County Register of Deeds, presumably because MERS purportedly held legal title to the mortgage itself but had nothing to do with this particular transfer. The Court further finds that PSA Sec. 201(E) was not complied with because the transfer from First Franklin to First Franklin Financial Corp. was’ never recorded.

Defendants’ failure to strictly comply with the terms of the PSA means that the loan at issue was never properly transferred to the trust. Any transfer of mortgage loans, such as Plaintiffs, was mandated to comply with New York Trust law and the terms and conditions of the PSA governing conveyance of mortgage loans into the Trust. PSA pp 155 and 36. This the Defendants did not do.

The Court finds that the “Assignment”, recorded on December 30, 2009 in the Washtenaw County Register of Deeds, serves to transfer nothing. The alleged conveyance failed to comply with the terms and conditions of the PSA and New York Trust law which governs the PSA. The alleged conveyance stated that MERS assigned the Mortgage and Promissory Note to USB, however, there has been no evidence presented to support the chain of the required assignments and endorsements of the mortgage and note as required by the terms and conditions of the PSA.

Other than First Franklin, a division of National City Bank, none of the Defendants owned the indebtedness, owned an interest in the indebtedness secured by the mortgage, or serviced the mortgage.

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So there you have it folks. I believe this is the second ruling of its kind with the first coming out of Alabama…

We might have something here that may be catching on…

Full opinion below…

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4closureFraud.org

h/t James G

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HENDRICKS v. U.S. BANK, BofA

Comments
9 Responses to “KABOOM | HENDRICKS v. U.S. BANK, BofA – MI Court Destroys MERS Finds “MERS Transferred Nothing” with Bonus Securitization FAIL”
  1. Molley says:

    Sorry I am not a legal person, but have an interest in all this stuff. How can Franklin own anything, did they not get paid in full. Am I missing something here. Surely if you have already been paid, you would not be entitled to foreclose as well ? Also would the beneficiaries of the securitzation trust not have recourse to sue the trustees ?

  2. Homer says:

    Can an attorney please provide their input on the following:
    -First Franklin is a defunct company.
    -National City is a defunct company after being purchased by PNC on 10/24/08 (with TARP funding)
    -The subject loan was sold and National City was paid in full prior to the sale to PNC.
    -The sale of National City to PNC did not include this loan.

    How can First Franklin own this loan? It seems to me that we have a new conundrum – where the beneficial interest has been divided from the legal title of the note. Any comments???

  3. l vent says:

    How could First Franklin be granted the foreclosure? There were obviously many laws broken here and no clean chain of title and then therefore this mortgage could NEVER, EVER be a secured debt. The debt has to be secured at the ORIGINATION. This foreclosure should be illegal. How is First Franklin entitled to a judgement as a matter of law? WHAT LAW DID THEY FOLLOW? They bought a bad debt is what they did. The PSA cannot be complied with at this late date and one of these lenders broke the law and the legal contract and ALL OF THAT PLUS MERS broke the chain and should kill any other legal contract. . This ruling is farsical. They should sue them for fraud and go after all of them and the judge criminally. This makes me mad. Who was the original lender? That is where it all starts and has to finish with a clean chain. I find this case to be highly deceptive. This means any pretender lender can sell the bad paper to anyone and they can steal your home to collect on this fraud.

  4. Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    Yes, it is good news. But it brings some bad news in tow.

    Page 7, last paragraph, 3rd sentence:

    “The Court grants Defendants’ Motion for a judgment of foreclosure, in favor of First Franklin…”

    So Hendricks made some good arguments and the court seemed to rule on them appropriately. The court also granted foreclosure to First Franklin so Hendricks lost his property anyway, just to another party.

    • We can hope that the apparent inconsistent portions of the findings and decision will be brought before a higher court. This show should not be over yet. I hope that Michigan lawyers upon learning of the publication of a notice of sale would start an action to clear title. Perhaps such an action would hold up the sale without the need to file bankruptcy and allow for a reasonable and proper judicial disposition.

      What ever happened to loan modifications as mandated in TARP in Michigan?

  5. leapfrog says:

    Gosh, I love that term….”bonus securitization fail” and the picture says 1000 words…

  6. Bryan says:

    EVERYONE, needs to email this case to every elected person on the hill. They need to know that we are not asleep. We know how our counrty has been infected with the greed and fraud of the too big to fail.

    Elections are coming.

    • leapfrog says:

      Speaking of TBTF, AIG is searching for more tax-payer bailouts…check this out.

      “Just when one thought every imaginable taxpayer bailout scheme had been seen, experienced and in many cases, forgotten, here comes AIG once again. The specifics come from Deutsche Bank’s Joshua Shanker initiation of coverage report on AIG (naturally with a Buy rating, $34.00 target price), where within the fine print he notes: “the company believes there may be bargains available from buying RMBS securities from European banks seeking better positioning under Basel III requirements. ” Prudently, he adds: “We note that increased yield, in this regard, also carries with it increased risk.” Translated this means that AIG is about to do for European banks what the ECB so far has been unwilling and/or unable: namely to transfer the risk associated with European banks’ massive ongoing exposure to the continuously collapsing US housing market back to the US taxpayer, in the form of AIG, which was bailed out once, and which will certainly be bailed out again, when the time comes.”

      http://www.zerohedge.com/article/us-taxpayers-about-be-saddled-another-european-bailout-courtesy-aig

      • l vent says:

        I heard about this today on Bloomberg news that AIG now wants to invest in European RMBS’s. They have a gambling sickness up on foreign owned and operated Wall Street and continue to party on. AIG is not American owned, it is a foreign owned and operated multnational corp. Let the World Bank/VATICAN/JESUITS bail the bastards out next time, they own them. The American people want to purge themselves of all of this evil and declare our National Sovereignty from this ongoing foreign owned and operated Multinational enterprise A/K/A THE U.N.NEW WORLD ORDER. DEATH THE THE FOREIGN MULTINATIONAL TYRANNY!!

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