Well, here we introduce Patricia Arango of Marshall C Watson…
Attached is the Arango deposition and exhibits. To help you all sort through it all, below is a summary of some of the high points:
MS. ARANGO’S TESTIMONY CONTRADICTS CONGRESSIONAL TESTIMONY OF MERSCORP PRESIDENT:
On the MERS website (as well as a Congressional website), you can find the testimony of MERSCORP, Inc. President and CEO, R.K. Arnold. http://www.mersinc.org/files/filedownload.aspx?id=668&table=ProductFile
In this testimony before the House Subcommittee on Housing and Community Opportunity, Mr. Arnold states:
To be a MERS certifying officer, one must be an officer of the member institution who is familiar with the functions to be performed, and who has passed an examination administered by MERS.
First, Ms. Arango is obviously not an officer of the “member institution” which would be the bank:
Q. Okay. Are you now or have you ever been —
17 strike that.
18 Are you now an officer or director of
19 Countrywide Home Loans?
20 A. No.
21 Q. Have you ever been an officer or director
22 of Countrywide Home Loans?
23 A. No.
(p. 6) Note that the corporate resolution she is relying on is signed by Arnold’s underling William Hultman, (Senior Vice President and corporate secretary of MERS, see http://www.mersinc.org/about/exec.aspx) which appoints employees of Marshall C. Watson, P.A. as officers of MERS. (see Corporate Resolution, Exhibit 1 to the deposition, attached). Note also that the appointment was as to loans shown to be registered to Countrywide Financial Corporation. The assignment that Ms. Arango executed, however, was from MERS, as nominee for Countrywide Home Loans, Inc. (Exhibits 4 and 7, attached).
Nor is Ms. Arango herself or her law firm a “member” of MERS:
1 Q. All right. Are you a member of MERS?
2 A. No.
3 Q. Is your law firm a member of MERS?
4 A. No.
(p. 8) So her testimony contradicts Arnold’s testimony that a certifying officer must be an officer—or even an employee—of a member institution.
Second, Ms. Arango never took any examination to become a signing officer for MERS:
11 Q. Okay. Did you have — did you have to take
12 any training from MERS or some other entity to qualify to
13 be an assistant secretary or agent for them?
14 A. I don’t — no, I didn’t.
15 Q. How about any type of testing or
16 certification, exam, anything along those lines?
17 A. No.
Clearly this contradicts R.K. Arnold’s testimony—and even though she is the “assistant secretary” of MERS, Arango doesn’t even know who Arnold is and has never even heard of him. (p. 75-76). She was asked about her specifically about Arnold’s testimony:
3 Q. If [Arnold]stated that in order to be a
4 certifying officer and sign an assignment on behalf of
5 MERS somebody needed to pass and complete an examination,
6 is that something that is familiar to you?
7 A. It’s not familiar to me, no. I don’t know.
8 Q. Okay. That was not something that you had
9 to do.
10 A. I did not do that.
So we can only draw two conclusions, either: 1) R.K. Arnold testified falsely to the House Subcommittee (or MERS only recently changed the rules to be a certifying officer, in which case he still misled the committee by implying that that has been the standard all along); or 2) Ms. Arango is not an official certifying officer of MERS—which would invalidate hundreds, if not thousands of assignments.
MS. ARANGO KNOWINGLY EXECUTED THE ASSIGNMENT TO THE HER CLIENT, THE SERVICER (WHICH IS NOT THE OWNER) OF THE NOTE:
When asked what the MERS information indicated as to who should be the recipient of the mortgage (i.e. who actually owned the note), Ms. Arango said she could not remember. (p. 43) At first she testified that the records would have indicated that Countrywide Home Loans Servicing LP was the owner at the time (p.44), but then admitted they were just the servicer (p. 44).
10 Q. What do you mean they’re the servicer?
11 A. Well, Countrywide Home Loans Servicing, I
12 executed this assignment from MERS into Countrywide Home
13 Loans Servicing LP.
14 Q. Okay. So if they’re a servicer, is that
15 separate and distinct from them being the owner?
19 THE WITNESS: The servicer services the
20 loan, and you can have, obviously, different
* * *
9 Q. Okay. They’re the servicer. Does that
10 mean they’re not the owner?
11 A. They do not obtain the beneficial interest
12 in the note.
13 Q. Meaning what?
14 A. They don’t get the proceeds. They receive
15 the proceeds from the borrower by virtue of their
16 payments, but obviously there’s a different owner. They
17 don’t own it.
(p. 44-45) She goes on to say that this conflation of the servicer and the owner happens because the servicer collects the money on behalf of the owner and she implies that this misperception, often by the homeowners themselves, somehow justifies her assignment to the servicer rather than the owner:
2 THE WITNESS: It depends on how you are
3 relating the definition of those particular words
4 because, for instance, you can, you know, quote,
5 unquote, own the mortgage with respect to
6 obtaining the proceeds, meaning the payments from
7 the borrower, and thereby, quote, unquote, own the
8 mortgage. That’s many times what borrowers even
After some sparring, she finally admits that the owner of the note is Fannie Mae (p. 47), which contradicts the amended complaint that states: “4. Plaintiff, is the holder/owner of the subject note and mortgage.“ She then goes so far to argue that the mortgage interest lies with both entities—the plaintiff and Fannie Mae. (p. 48)
MS. ARANGO DID NOT CHECK THE MERS RECORDS TO DETERMINE WHO MERS SAID THE OWNER WAS:
When shown the records that were requested directly from MERS (which shows that Fannie Mae is the owner), she admitted that she has never seen those records, and that normally “this is not what I see.” (p. 56). She claimed that she looks up the “investor” (the owner) on the public MERS site, but she did not realize that the MERS did not make that information available on its site until long after she executed this mortgage. It cannot be overemphasized that her obvious objective is not to determine the rightful owner of the note so that she can assign the mortgage to that entity, but rather, to simply make her own client the mortgagee so her client can win the case. In any other context, this would be called manufacturing evidence.
THE ASSIGNMENT WAS MODIFIED BEFORE IT WAS RECORDED, BUT AFTER IT WAS NOTARIZED:
Compare Exhibit 7 and Exhibit 4. Exhibit 4 is the recorded version (which has the handwritten words “in mortgage referenced herein”). Exhibit 7 is identical except it doesn’t have the handwriting, but rather, a typewritten reference to an Exhibit A. My guess is that the clerk would not record the assignment that referenced an exhibit that didn’t exist, so someone whited that out and handwrote the correction. It is, of course, a violation of law to change a document after it has been notarized.
Depo and exhibits below…