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Tim Bryant
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I believe that one of these cases really needs to go to the US Supreme Court. The states are making decisions that scale a plethora of reasonings in regards to MERS. I would argue that MERS transactions are controlled by federal law, the E-Sign Act, which states have no authority to change it's provisions (as stated in the Act). In every action involving a MERS transaction, the burden is on MERS to show they have met all the electronic signature requirements of transferable electronic records. MERS would fail in every case. By the very nature of the Act, MERS cannot maintain its "assignee ad infinitum" status. MERS can never meet the status of custodian, since the PSAs state that the Trustees hold the authoritative copies of the mortgage instruments. All "MERS" (the software), and MERS, Inc. (the business entity) holds is the electronic record through it's software. This would deem it as an "electronic agent" only, with no E-Sign authority. One may even argue that their own rules, strip them of even this status, since these transactions require in their entirety, MERS, Inc. (the business entity) approval. You could also surmise that they are neither a "person" under the act. No MERS employee performs any transaction, recording, or monitoring of such. The "members", whom are not employees, perform all these functions, all in the name of MERS, Inc. MERS, inc. as a business entity is a legal fiction. It was created by the mortgage industry to facilitate the selling and securitization of loans. EVERY MERS contract is a fraud in the inducement. MERS representation as to it's true intent of security instruments, is a fraudulent conveyance of the obligation, with the intent to deprive the debtor of the rights secured by the note.
Judge Vowell is not fit enough to judge a dog show. His legal reasoning makes absolutely no sense. Not only has he shown the E-Sign Act was not abided by, he uses the PSA in his decision when it is convenient for him. He claims that Ms. Congress was not a party to the PSA, therefore cannot invoke NY law. He then justifies the the claims of US Bank by invoking the very same PSA. By this reasoning alone, only the seller of the debt is liable to US Bank. Judge (by me a) Vowell is using judicial activism, and not legal soundness. How can there be privity of contract (the PSA) on one-end, but not on the other? This clearly was a pro forma decision, based not on the law, but for the efficiency of the courts. His only “proof” of ownership is a reliance on the statements contained in the PSA. Outside of the PSA, the chain of title was clearly broke. Further, Attorney McCollough’s assignment in MERS is an invalid electronic transfer. MERS cannot grant her authority to transfer an assignment, neither can GMAC, if US Bank actually was the true person in control of the note. Also, if all the statements in the PSA were accurate, as the judge claimed, then why was an assignment made just before foreclosure. He makes absolutely no sense. Judge Vowell, do everyone a favor, go back to night school, and how about taking some law classes while you are there !
What the judge failed to mention, because it was not raised, is that MERS transfers are not legal electronic transfers in accordance with the E-Sign Act. An "in blank" transfer is not legal. The Act clearly states, "An electronic signature is only valid under the Act if the signatory intends to sign the contract." An "in blank" assignment does not attest to this fact. Once the trustee "signs" the contract, they are no longer a "trustee" under IRS guidelines. Also, if your state requires transfers and assignments to be recorded with the local jurisdiction, the electronic assignment is not valid until it complies with the law. "The Act permits notaries public and other authorized officers to perform their functions electronically, provided that all other requirements of applicable statute, regulation or rule of law are satisfied." As the final blow to the judges reasoning, Electronic Signatures are specifically exempted from the E-sign Act, "Other Exceptions Court orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings; Any notice of— The cancellation or termination of utility service (including water, heat, and power); Default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual" An assignment to foreclose and repossess must be in writing !!! It would be nice if the judges learned the law!!!
Tim Bryant is now following The Typepad Team
Mar 6, 2011