Last week, I wrote that April Charney’s quote, “Can you get a divorce if you’ve never been married” was my favorite Fraudclosure quote. Charney was referring to the fact that in most cases, the mortgages being foreclosed on never made it into the trusts so trying to enforce them as such is a legal impossibility.
The MERS Moonwalk quote comes from Greg Clark’s commentary on the directive released from MERS on February 16, 2011, in which MERS, the legal Frankenstein significantly retreated from its former corporate DNA. The announcement asserted to be an effort to strengthen its business practices, but it is in so many ways acknowledgment that something is very, very wrong in our real property recording offices all across this country. After years of insisting that assignments didn’t need to be recorded, now MERS will require recording. After years of insisting that any old warm robo signer would do to execute an assignment, some actual protocol is now being implemented. Read the full MERS announcement here:
MERS+Announcement_2011-01[1]-2
Then consider Greg Clark’s thoughtful commentary here:
After the Agard decision you all should be checking your memory banks for the words I spoke to you over a year ago in the wake of the Kansas case: MERS was granted no right by the debtor/grantor to assign the mortgage nor power to assign its duties as nominee. All powers MERS derives under the mortgage derive from the grant our clients gave. Whatever unrecorded undisclosed agency agreement it has with its members, it cannot enlarge upon the grant we gave. The grantor never gave a power of substitution which is required before an agent is allowed to pass off its duties to another without consent of its grantor, the debtor mortgagor.
Conveyancing/grant law when it concerns agencies and powers of appointment is much more conservative than general contract law. As an agent/grantee you can only give what you are given.
I contend that it was the grantor’s reasonable expectation that MERS would be the holder of the mortgage lien and no other, thus giving the borrower an identified entity to release and discharge the lien in view of the fact that the loan was rigged in such a way that we would likely never know its true owner, the so called invisible lender commented on in the UCC once the securitization amendments were added to Article 9. MERS was our anchor to clear title.
This is why I have always maintained that the assignment from MERS itself is ultra vires to the authority granted MERS and constitutes a defect/cloud on title (true the MERS configured mortgage is defective as a legal mortgage on other grounds but it should be subject to a redo try in reformation).
This is why Agard is so damaging and why MERS suddenly wants to moonwalk away from the scene of the crime and hopes no one notices.
And this is why all of you should have been affirmatively defending that the MERS assignment is itself invalid as a violation of grant authority, lest by your silence you have waived and ratified this expansion of apparent authority by your agent. Yes, I said your agent, You (your client) signed the mortgage deed that created this agency. MERS is your bitch, don’t let her go.
She is the key to forcing the judges to require full deraignment of loan ownership and holding so the securitzed trust can be yanked out to the light of day and April’s a-b-c-d attack fully deployed.
Greg gives us much to think about there, but finally, and most importantly, consider this case out of Florida’s 3rd District Court of Appeals. Nowhere in the world would we allow a trustee, any trustee, if asked to take any action unless that trustee showed the executed trust that gives it the power to take the action. This is a basic, very basic element of law that has been upheld in every jurisdiction of the country from the beginning of recorded time. So how is it that trustees purport to take action (transferring mortgages, foreclosing on homes) millions of times across this country and they are never, ever required to show the trust document that gives them the power to do so? There are some trustee actions which on their face may violate the trust laws such as when corporations purport to act as trustees on behalf of corporations.
Why have we as attorneys and why have our courts just ignored the very foundations of trust and agency law? We have all been watching our country be destroyed from the inside out for years now. What you see occurring now is the accelerated collapse caused by years of ignoring the law. Carefully consider the very basic and clear application of the law described in the opinion below. The law is simple, if a trust does not specifically grant the trustee/agent the power to act, the trustee has no power to act. How often do courts review trust documents or MERS authority when accepting the acts which form the foundation of the courts grant of judgment and ultimate sale?…..NEVER.
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