Foreclosure Fraud – Fighting Foreclosure Fraud by Sharing the Knowledge

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1. Dave Krieger says:

   December 30, 2011 at 9:46 PM

   What puzzles me is that the copy I received of this case had all of the pertinent information redacted, including the county (presumably Clarke or Loundon because of the appearance of six letters being redacted) where the suit was filed and the case number. It’s one thing to rant about a case but to redact all of the information about the case after you’ve achieved victory is troubling. As a paralegal, I would have checked Virginia statutes to see whether publication is required. In most states, if you file a quiet title action, I’ve seen where a motion and order of publication against unknown defendants is issued by the court and 4 consecutive publications appear in the legal notices. I did not see evidence of an order of publication in this instance. Most of the instances where summary judgment and quiet title have been challenged is in defective service. Publication takes care of unknown defendant claimants. I have a tendency to agree with the author here, in light of the Groves case in Texas; MERS obfuscates the true parties in interest, so if you serve the original lender, who in many cases is bankrupt, counsel appears to think all is well. However, the cases I’ve research are showing me that BOTH known and unknown parties must be served. The reason MERS came in on the Kesler case and the Groves case was because of default. MERS was never notified. Since MERS doesn’t hold the note, it claims it’s the nominee for the lender who does. When asked to produce the name of the lender, MERS’s counsel winds up into a little ball and like a chickens**t, instead of following logical procedure to prove its claim, it removes the cases to federal court in an attempt to slam-dunk the proceeding. It’s no wonder no one wants to play with people who act sore about it. A quiet title action is what it is. The banks do NOT know how to proceed with QT actions, as evidenced in Ibanez. Their counsel needs to wake up and smell the procedure: you either CLAIM or DISCLAIM. If you don’t have an interest, you don’t get to remove it to federal court; you disclaim your interest, get out, and save your clients a bunch of legal fees. This appears to be non-productive for the lender’s counsel, as billable hours don’t kick in unless you can drag the case through the mud and rack up fees from your lender client. This is the game the lenders’ attorneys are playing with MERS and the lenders … billable hours games. Let’s make a mockery of the proceedings, shall we? This is part of the reason judges are not keen on these types of procedures because of the games that are played by counsel. Price v. Tyler in Florida does not allow for attorneys to collect fees on quiet title actions; so to that end, the game appears to have shifted to improper answers and thwarting decisions. At some point, the borrower’s counsel is going to have to direct the action here and make these cases so state-airtight that they are not likely to be removed to federal court. Look at the Utah cases as an example.

   If you notify MERS, MERS then turns around, tells its buddy the OCC who it answers to as part of the Consent Order, that it’s been sued again, this type by Borrower X. Then MERS goes into its database, digs up whoever happens to be holding the “commercial paper” at the time and jumps out of the closet like the boogey man. No chain of title to back up its claims. The chain of title never matches the chain of custody of the note. Banks attorneys are telling me once the chain becomes convoluted, you cannot legally reconstruct it. This is what quiet title actions are for. MERS doesn’t own the note. It has no standing. MERS can’t be a trustee and foreclose. The deed of trust act doesn’t include MERS. MERS can’t hold legal title. The trustee holds legal title according to statute. Could it be that MERS is tortiously interfering with contract because of this? If MERS acts as the trustee and claims to have the power of sale, then what the hell do we need the stinking deed of trust act for? The trustee clearly has the power of sale and applicable law denies MERS that right. is anyone arguing that yet? They probably could have used that argument in the Sauerman case in Michigan, huh? Oh well, if it ain’t legal advice, you can’t use it.

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2. Jeff says:

   December 30, 2011 at 12:33 PM

   This case is still in Litigation. Onewest as successor to Indymac refiled their motion to set aside the quiet title. We (LFA) provided the Securitization Audit in this case. It is our understanding that Onewest is claiming that they were never served which may or may not be the case, what is absolutely true is that Onewest was not in the land record. MERS leaves parties of non-interest in the local land record. If true parties of interest are concealed by MERS it begs the legal question do litigants have an obligation to serve such a concealed party. Further, Onewest had filed a motion to intervene and withdrew the motion. This alone shows that they were obviously not harmed by not being served (if they were not served) and had ample opportunity to respond.

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   • indio007 says:

     December 30, 2011 at 4:37 PM

     Well if you consider that this is a proceeding in rem , I don’t think personal service (and in personam jurisdiction) is as important as the bank thinks. If they motioned to intervene, then they had actual knowledge of an action against the property and failed to protect their legal right. Obviously they were attempting to kick the can down the road. Most likely so they had time to forge documents.

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   • Mark says:

     January 24, 2012 at 11:36 PM

     Jeff,

     Glad to see you’re still swinging the bat. I am still looking at my own options on my note & DOT.

     Mark

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