By Dave Krieger (OpEd)

A lot of events have come into play lately that makes me wonder that very thing …

FIRST GLANCE:

I was invited to Gwen Caranchini’s federal settlement conference last week (02/18) in Kansas City. Wow! I hadn’t seen the new federal courthouse in the Western District of Missouri in years (since it was built); such architecture. One would wonder what exactly was supposed to happen in such a conference. I was soon to find out: nothing.

Of significance however, was my introduction to MERS’s representative and their attorney. Within a minute, they had discovered I was the one in the same person that posts pieces on this website and wrote a book on the proverbial mess I claim (as well as others in the legal profession) they made in the chains of titles to now over 66-million pieces of real property in the United States of America. It’s amazing how much of a mess that really is when you look at it in detail. One would have to ask just exactly what these title companies are supposed to insure and … how much new risk are they placing themselves in?

When we got into the federal magistrate’s courtroom and the introductions of the key players were finished, MERS’s attorney stood up with raised voice and proclaimed that he and his client didn’t feel I needed to be there and thus voiced his objection. Moi? I rattled their cage? L’il ‘ole me? Gwen found it hilarious. So what if I run a blog site? I’m not going to tell you what went on behind closed doors … because I told the judge I wouldn’t … and nothing happened anyway. The question is … why did my presence get their panties in a bunch? They acted like I snuck up behind them and gave them a proverbial wedgie; and all I did was say “hello”. Clearly, I didn’t make their day. The judge was very cordial … and told MERS I was staying.

TAKE TWO:

On the way up to Kansas City, I had over an hour to re-read and mark up key points in the Ferrel Agard case that had just recently come out of the Eastern District of New York in Central Islip. Judge Robert Grossman had handed MERS a ruling they weren’t anticipating and as a result (I personally believe) William Hultman is no longer the Secretary-Treasurer of MERS (he’s now a Senior VP and corporate manager); Sharon Horstkamp, who previously served as MERS’s General Counsel, has taken over those duties.

One would think that if a state judge ruled that a homeowner failed to plead his foreclosure case and was further found to be in default (by not showing up), then why the need to file bankruptcy? Why the need for MERS to stick its nose in to the “cage of a pit bull” only to get it “bit off”? What did MERS hope to accomplish by defending its position as a “nominee” in a case that was already moot due to res judicata and further due to applications of the Rooker-Feldman Doctrine? Judge Grossman handed MERS its proverbial walking papers as far as agency is concerned. It will be interesting to see how MERS’s counsel pooh-poohs that ruling.
In this case, MERS can’t be sore about the ruling because as Grossman cited Kesler (Kansas) … I would have to ask which part of the elephant did MERS (acting as the blind man in the Indian legend that described the parts of an elephant he touched) actually touch and exactly who in that organization is now going to clean up the mess left behind in touching the elephant’s tail?

THIRD TIME’S A CHARM:

No sooner did the ink dry on the Agard decision … MERS put out a press release (Number 2011-01) indicating it was revamping its membership rules. Coincidence? You be the judge.

What I have a big problem with is those pesky signing agreements that MERS seems to think legally hold water. If you want to establish an agent-principal relationship (in this case, it’s with over 20,000 alleged “signors” all claiming to be either a “Vice President” or an “Assistant Secretary”) with someone that may have no real, actual knowledge of what they’re signing (robosignor), how in the heck can you indemnify the principal that gave you as a robosignor that authority in the first place? Hey MERS! How’s your errors and omissions insurance? If I were an insurance carrier, I’d dump you like a hot potato! That’s just my opinion!

Just because you have a “new and improved” Corporate Resolution Management System (acronym: CRMS) in the works … doesn’t make you any less of a principal and thus expose your liability when your so-called “signors” claim to indemnify you in their signing agreements. What most attorneys I think will start doing (is that the little bird out there talking to me again?) is challenging your signing agreements as being worthless. Really … can you delegate authority to a signor through a corporate resolution, allowing them to sign as “virtual subagents” of MERS, using MERS rubber stamps to give the examiner some semblance of authority for what your agents did … and if it’s discovered that your agents acted recklessly and with wanton disregard in signing and electronically filing these documents in courthouses all over America (wire fraud?) thus proven to be fraudulent … how is it you’re not liable for giving them that authority by corporate resolution? Law of Agency 101

DON’T PISS OFF AN IRISHMAN!

I can tell you with a certainty that the temper of the Irish is something not to be messed with …

I knew it was only a matter of time before someone in a position of power, namely, one John O’Brien, the Registrar of Deeds for Southern Essex District for the Commonwealth of Massachusetts, would declare he’s ready to enter the ring with MERS. In the wake of numerous qui tam actions taken around the country, word has it that Christopher L. Peterson, noted Professor of Law at S. J. Quinney School of Law at the University of Utah, who is assisting the qui tams in California and Nevada is a hopeful candidate in some capacity by Mass-AG Martha Coakley’s office coming after the electronic database for over $200,000,000 in unpaid assignment fees that should have been recorded in the state’s real property registers, but weren’t.

If I’m not mistaken, didn’t some corporate entity named MERS, tell its subscribers in “The Building Blocks of MERS” (a computer-generated slide show extolling the virtues of itself) that they MUST record their notices and assignments in the county recorders’ offices?
O’Brien has stated that the lost recording fees owed to county recorders nationwide could run into the billions of dollars. (On the phone, John sounds like a pissed-off JFK … and he’s mad!)

“The fact that they deliberately chose to create a for-profit private cyber Registry of Deeds whose only purpose was to avoid paying the same fees as everyone else and keeping the public in the dark as to who was the rightful owner of the mortgage clearly demonstrates to me that this was a scheme of epic proportions”, according to O’Brien.

According to O’Brien’s Assistant, Kevin Harvey, who I spoke with shortly before writing this piece, says Peterson is a familiar face in this state with this help on other cases. Time to put the gloves on … Geez, those Irishmen can fight, can’t they? Keep your eyes on Massachusetts!

THE LAST STRAW:

• For every anti-MERS ruling that the foreclosure defense consortium tosses at MERS, MERS PR Department retorts with its own claims of victorious rulings that give it impetus to do what it’s doing. One thing is clear here … there is an entire chain of case law out there (across the entire U.S.) that is totally inconsistent as to what MERS’s real authority is; thus further adding to the confusion (perhaps by design?). My take on this is that before this is over, SCOTUS is going to have this mess dumped into its lap.

• The citizenry is already up in arms about the attempted passage of legislation being defeated in the Commonwealth of Virginia thanks to MERS and the Virginia Bankers Association. Come to find out, when banker-legislators hold key positions of power, how do you expect the tide to turn in favor of the homeowner?

• In Arizona, legislation reforming the Deed of Trust Act has moved from the Senate to the House, despite an appearance from Hultman and the state banking interests … the Senate committee vote: 4 Yeas, 0 Nays, 2 Abstentions.

• A major rally is planned up in Seattle this weekend, along with testimony that is on-going in Olympia in an effort to make significant changes to its Deed of Trust Act, pitting disgruntled homeowners against legislators. The outcome is questionable?

• Last week, several more documents that were purported to have been signed by MERS agents were turned over to the DOJ in Central Florida by attorneys in Arizona and Washington State, as the feds continue their investigation into LPS/DOCX and robosigning frauds. Linda Green? Are you out there?

Go to www.thepowerhour.com and download the archives of my last three shows. Seattle Attorney Matt Hale was on the last program with me discussing the failure of loan modifications; which by the way … the Federal Trade Commission has now ruled that attorneys cannot take advance fees from homeowners for doing loan modifications (especially ones that won’t or don’t work … they rarely do) with a lender. It’s an $11,000 fine for each day spent and $11,000 fine for signing and taking advance fees. This author feels the likelihood of loan mods in the wake of the MERS debacle are at a futile end. Most homeowners may find solace in quiet title litigation.