By Dave Krieger
“MERS 101”
The event was sponsored by the V. G. Young Institute School for County and District Clerks in conjunction with the AgriLife Extension division of the Texas A & M System and the V G. Young Institute of County Government. Two separate lectures were given by the author at 3:00 and 4:10 p.m. to county and district clerks from across the State of Texas.
My mental database of knowledge on this subject matter had to be condensed into an information-packed hour, which included video deposition testimony of a robosignor and a piece done by MSNBC that featured Essex County, Massachusetts Register of Deeds John O’Brien, (salemdeeds.com), who refers to his land records as a “crime scene”, discussing the issues involving the bank’s taking shortcuts through third-party service providers and committing fraud on the land records with documents that have been deliberately manufactured without the knowledge of the facts attested to by the person signing and the allegations that the notaries that witness the signatures of those executing the documents are often not present at the signings.
Out of 254 Texas counties, nearly two-thirds of the clerks representing the land recordation systems in the State of Texas showed up for the lectures and at certain points in the lecture, jaws literally dropped at the information presented (especially that of the robosignor who admitted he had no idea what an “Assignment of Mortgage” was, after admitting he signed hundreds of them an hour).
I was surprised (especially in the second session) at the number of clerks (elected officials) who had no idea who MERS was. The first session however, was just the opposite. Very few district court clerks attended the sessions; however, those who did came to the understanding that they may have to bone up on Order of Publication with the upcoming wave of quiet title actions expected to be filed in the next decade, along with slews of §51.903 motions.
My lecture, which also included interactive Q&A, produced many legitimate questions about the sources of the recordations; to quiet title; to the liability of title companies; to the fraud on the documents found in land records all across America. I encouraged all of the clerks to direct their legal questions to their county and district attorneys, as I cannot (as a paralegal) render legal advice. (Much of the information shared with the clerks was taken directly from the new, updated version of Clouded Titles, soon to be released.)
Afterwards, some county clerks came up to me and thanked me profusely for the information; one clerk showed me a letter he dug out of his files that was directed to a legislator from the clerk concerning the legitimacy of the MERS recordation system. Another clerk came up to me asking me for the styling of a quiet title action filed in her county so she could look it up. I told her that she may want to check on the records as to conformation to the Texas Property Code (as some of the documents in that particular case were suspect for robosigning issues). I got to see many new faces in addition to some familiar ones (who I’ve previously been working with).
My take on MERS’s continued existence in the State of Texas is that there is a huge groundswell of support to repeal legislation that gives MERS any authority to record its deeds of trust in this State. The legislation that gave MERS the right as a “nominee” to record in this “permissive recording” state was enacted in 2003 and took effect January 1, 2004 and was authored by outgoing State Representative Burt Solomons. Many clerks were quite surprised that this legislation (merely by adding a definition) made it “under their radar” and many were visibly upset.
The lawsuit filed by Dallas County District Attorney Craig Watkins against MERS and MERSCORP was removed to federal court (there are no federal questions in the complaint according to lead attorney Steve Malouf) and we can expect to see it tied up in multi-district litigation, a typical ploy of MERS to further stall the cases filed against it. All of the county clerks were made aware that this class-action-style suit involves all 254 counties and they were told to bring the matter to their county attorneys for follow-up (filing a motion for leave to intervene, according to the way Steve Malouf put it, to make the county part of the representative class). Several counties in Texas have already vowed suit against the private electronic database.
All in all, I was quite pleased at the turnout. It leaves open the door for more interaction with the clerks, both in legislative sessions and in private consultations about their specific land records. One thing is for sure, those clerks who are aware of MERS don’t like it and don’t want it around anymore.