This is Part 2 of a 3-part series on MERS and its attempts to “bat clean-up” (another word for damage control). For more information, and to read the preamble to my response to MERS’s PR campaign, see Part 1 of 3 on https://www.cloudedtitles.com.
“Setting the record straight” … this is what MERS CEO Bill Beckmann attempted to orchestrate when he caused this almost-full-page response to the land record audit with an “open letter” to the Williamson County Commissioners. Beckmann obviously didn’t understand that before this audit was ever conducted, conversations amongst the hierarchy in Williamson County about the condition of the land records had already taken place, as early as the days when former MERS CEO R. K. Arnold bandied his PR campaign about the countryside much to the chagrin of county recorders and Texas Clerks alike. What became noticeable to the hierarchy was the proliferation of alleged robosigning with the repeated filings of foreclosure mill attorney Stephen C. Porter’s signature, or multiple variations of it, along with another known foreclosure attorney, Selim Taherzadeh, along with multiple signature variations of his signature. Did we say MERS was directly responsible? I think not. They just provided the business model for this behavior.

This intervention (what I call the published article of February 7, 2013 in the Austin American- Statesman) appears similar to the results of an intervention that took place in the case of In Re Agard in a New York bankruptcy court, where Judge Robert Grossman literally eviscerated MERS to the same level as gutting a chicken once you’ve cut its head off and watch it run around in circles before it bleeds out. MERS then had to take its case to another federal district judge to “bat clean-up” again (the Grossman attack on MERS in Agard was ruled improper).

Most PR experts I have spoken with tell me that if you make a mistake, the best PR approach is to come right out and admit it. That’s not what I’m seeing in this newspaper article. It looks to me as if MERS is trying to justify itself and further justify its existence before another lawsuit gets filed against it while yet another lawsuit is in mediation (Dallas County v. MERS).
Hey, it’s a free-speech country here, at least for the moment. So Beckmann gets to take a shot at my work in “setting the facts straight”. Most of the time, when someone hasn’t read something (as in the Williamson County land record audit), that the PR arm wouldn’t simply come out and say, “We have no comment because we haven’t read the audit yet” rather than the usual adage, “We haven’t done anything wrong.” There’s the PR defense mechanism rearing its ugly head again. That’s like the kid getting caught with his hand in the cookie jar all the while looking at you with a facial expression of, “What did I do wrong?”
One would have to wonder why Beckmann would seemingly attempt to rebut something and not check his work for errors. Thus, I’m going to “have at it” and rebut some of MERS assertions in this article, which ran in the Austin American-Statesman on February 7, 2013.

I should precede my comments with the fact that an attorney who is known to represent Bank of America came into the Williamson County Clerk’s office threatening suit. A lawsuit for what? Bring it then! We want discovery! This is called “intimidation factor” as part of “damage control”. This is what Southern Essex County Register of Deeds John O’Brien told an attorney (that came into his office after the audit of his land records was issued) that threatened him with similar action. This too, is part of damage control.

MERS has a P.R. department designed specifically for that purpose. After all, if MERS didn’t do anything wrong:

• Why did they agree to a Consent Order on April 13, 2011?
• Why all of a sudden are they in mediation with Dallas County over allegations of the Texas Local Government Code Section 192.007 violations, which largely was used as a basis for the Williamson County real property records audit?
• Why did Multnomah County, Oregon sue them?
• Why did the Kentucky Attorney General sue them?
• Why did the (substitute name of county or state here) sue them? Why is Williamson County considering suing them?
• Why are they named in virtually every lawsuit filed against a lending institution by a disgruntled homeowner who “just now found out MERS is in his deed of trust or mortgage”?
• Why did the Washington State Supreme Court rule that they weren’t a valid beneficiary under the Washington Deed of Trust Act in the Bain v. Metropolitan Mortgage case?
• Why are the Oregon Supremes taking up similar issues that Washington ruled on as to MERS’s “beneficial” status under the Oregon Deed of Trust Act?
• Why have several law professors, who I deem highly worthy of commendation here, along with several states attorneys general (like Washington’s Jim Sugarman, who now works at the Consumer Financial Protection Bureau along with law professor Christopher Peterson, whose white papers you all know and love), come out against MERS in several think pieces and amicus briefs?
• Why is Ohio Congresswoman Marcy Kaptur sponsoring legislation to rid MERS involvement with government-sponsored entities (Fannie Mae, Freddie Mac, Ginnie Mae)?
• Why are many States (like Rhode Island) now reconsidering banning “nominees” from acting in the stead of the lender in foreclosure actions?

Need I go on?

Don’t you think for one minute that the court systems across America aren’t going to get tired of dealing with MERS business model? They will at some point, as the dockets start loading up en masse as more and more homeowners come out of the woodwork “with pitchforks” and sue MERS into oblivion. Do you really think there are enough attorneys to defend millions of lawsuits? I would think at some point the legal costs would do more than “tarnish” MERS’s profit margin. Mind you, I could pay $10,000 and get an opinion letter drafted by a major law firm that ironically represents my interests to clarify that what I’m doing is legal. So what’s all the fuss about putting an article in the American-Statesman?

Beckmann can attempt to “set the record straight”, but some of his assertions come at a price:

• I would have to question exactly how many Borrowers really KNEW who MERS was when they went to the closing table because most of the homeowners I’ve talked to said they had no idea who MERS was and the title companies handling the closing sure didn’t explain it to them. It amazes me that if people knew about MERS, why did the Williamson County real property records office received hundreds of phone calls from concerned homeowners over a 10-day period following the release of the audit?
• In the rebuttal letter, Beckmann tells the Williamson County Commissioners that they heard this testimony on January 22, 2013, when in fact, the Commissioners’ Court heard this testimony on January 29, 2013. What does that say for Beckmann not getting HIS facts straight?

I’ll present the rest of my rebuttal in Part 3 of 3 of this 3-part series.

Posted: Feb 08, 2013 5:11 PM CST Updated: Feb 08, 2013 6:17 PM CST
By Dave Elias, NBC2 Investigator

LEHIGH ACRES, FL – A Pennsylvania couple recently purchased their retirement dream home in Lehigh Acres by using an online auction company. Ralph and Linda Donley paid $65,000 cash for the home only to discover an eviction notice on their front door months later.

“They say we own the house free and clear.  I said we can’t. We’re getting evicted.  How can it be ours?” said Linda Donley.

It turns out a second mortgage on the property surfaced and the home went into foreclosure.

“The title company didn’t do their job at all.” said Ralph.

The Donley’s did have title insurance. While they’re expected to get their money back they will not get money for upgrades they made to their home.

“I put new hurricane shutters on the home. That cost me $2,000.” said Ralph Donley.

Allen Olofson-Ring, a Realtor at Coldwell Banker, said he has never seen anything like this happen.

Donley, 81, has until Monday to vacate the property. The best advice to avoid this type of situation is to make sure you have title insurance when you purchase a home.

Title insurance MAY NOT save you if the mortgage isn’t recorded (see Schedule B for details) in the real property records. As to the last sentence of this story … I love it when TV news people hand out legal advice when they’re not attorneys. Online auction companies are NOT to be trusted due to the fact most of them disclaim accuracy for the information they post on their websites and further, most of them insist you indemnify them from all liability when purchasing property on their website!  What kind of a “deal” does one expect to get when a prospective purchaser can’t even be bothered to check the real property records BEFORE making a purchasing decision?  This is one reason why chain of title assessments are necessary. Smart investors know this!  This is one reason why title companies are going to end up getting sued in the future. Can you imagine the negligence claims pouring into the E&O carriers?

By Dave Krieger, Managing Member, DK Consultants LLC, San Antonio, Texas

GEORGETOWN, TEXAS – Williamson County Clerk Nancy Rister just issued a news release pertaining to an audit she commissioned last October of the real property records of her county.  You can obtain a copy of her press release by CLICKING HERE.

The release comes on the heels of an announcement made by Jack Conway, Attorney General for the Commonwealth of Kentucky, who has filed suit against MERSCORP Holdings, Inc. and its subsidiary, Mortgage Electronic Registration Systems, Inc. for alleged violations of his State’s recordation statutes.

Austin area attorney David Rogers and I will be appearing before the Williamson County Commissioners’ Court on Tuesday, January 29, 2013, beginning at 9:30 a.m. to explain the results of the audit, which will be released the evening prior to our appearance before the Court. The media is welcomed to attend and it is our understanding that numerous residents of Williamson County also plan to fill the Court chambers.

Those who are not included on the list of email recipients for this audit report (over 140 pages including the legal opinion) are welcomed to access the .pdf version on this site on January 29, 2013.  It will be provided in a separate announcement.

Any questions regarding the results of the audit or media inquiries may be directed to Dave Krieger through the email link on this website.

By Dave Krieger, Managing Member, DK Consultants LLC
Author of The Credit Restoration Primer, 5th Edition

The Minnesota Attorney General’s office has released the Consent Judgment involving the case of State of Minnesota by its Attorney General, Lori Swanson v. Midland Funding, LLC and Midland Credit Management, Inc., Court File No. 27-CV-11-11510. You can download a copy of the Consent Judgment here! Kudos and salutations to Lori Swanson and her staff!

Upon reviewing this document, you’ll see that Ms. Swanson’s office was involved in countless hours of litigation on behalf of consumers in her State, resulting in over 200 sworn depositions and several rounds of discovery in anticipation of a trial.

Among other conditions, the Defendants have to vacate any judgments they were awarded against any consumer wherein their audit investigations (as of May 19, 2005) confirm that the person sued ever owed the debt in the first place (they can’t sell the debt to another debt collector either if that’s the case); in addition to coming into complete compliance with the Fair Debt Collection Practices Act. There is a complaint form that Ms. Swanson’s office has made available on its consumer website that consumers can fill out if they need further information about this judgment or involving any other debt collection matters.

While debt collection issues are not summarily the active concern of my consulting firm, the cause and effect of foreclosure cases is tainted credit files. The repositories (Equifax, Experian, Trans Union and Innovis) get their file information from the creditors. Unlike MERS however, which has no regulatory oversight, these repositories are under the regulation and jurisdiction of mandates established by Congress under the Fair Credit Reporting Act, which you can obtain a .pdf copy of at www.ftc.gov.

Concerning the actions of debt collectors, you can also obtain a copy of the Fair Debt Collection Practices Act on the Federal Trade Commission’s website. Generally, most if not all States have corresponding statutes that parallel (to a certain degree) the language proffered in the federal statutes. In some instances, like in California’s Rosenthal Act, that State drafted much of its own statutory mandates taken from the FDCPA; some with more “teeth” in them, some with less.

Of late are the issues wherein lenders (as creditors) are being challenged for violations of the FCRA in cases where the lender or the law firm attempting foreclosure can’t show that the alleged lender, as Plaintiff in the foreclosure action, actually owns the note they’re foreclosing on. If the lender doesn’t own the note, then what right do they have to report details of the payment history on that note on your credit reports? This is going to be a huge “tag-along” issue in future foreclosure litigation, especially litigation permeating the federal court systems.

I will keep you posted as to when the new version of The Credit Restoration Primer will be available, for those of you who wish to review the latest credit restoration issues and concerns, including case law and an updated index. Keep checking this website for more information.

By Dave Krieger (Op-Ed) December 14, 2012

A lot of homeowners are reading my book Clouded Titles.  Many of them seem to appear disconcerted over whether quiet title actions actually work.  Of late, the diatribe I get from some is that I appear to be “blowing smoke up their asses”.

Well … I have news for you:

CLICK HERE TO DOWNLOAD AN ORDER QUIETING TITLE (MISSOURI CASE)!

For those of you who doubt this action works and that you can’t challenge foreclosures using quiet title actions, think again.  Just ask Missouri attorney Greg Leyh about the feasibility of such an action!  If you’ve read the latest edition of Clouded Titles, Greg Leyh is one of the attorneys who has commented on my work. I’m not tooting MY horn here. I’m congratulating Greg for a job well done!  Since you all wanted to see proof … now you have it! For every quiet title action my firm has been made aware of, there are probably ten quiet title actions we aren’t aware of.  Rhode Island attorney George Babcock has also gotten some QT wins of late as well. There are attorneys out there who understand the concepts necessary to engage the “enemy” using these strategies.

Finding Competent Counsel

Part of the issues with homeowners seeking these actions is finding competent counsel. This is one of the reasons that the burgeoning network of paralegals and COTA Preparers out there is vetting attorneys, trying to find counsel that is willing to accept our research and case law as part of our litigation support.  The attorneys call the shots here!  I am not a lawyer referral service and neither is any given COTA Preparer out there.  We are contacting attorneys and having conversations with them to determine: (1) whether there is any interest in pursuing this line of litigation; and (2) to provide counsel with contact information to help them succeed in winning these kinds of cases.

The foreclosure mills have support networks.  I talk about them in my book. They are given gobs of information, for which the intended use is to foreclose on homes in America by whatever means are available.  Unfortunately, new information has come to light that many of these mills aren’t “playing fair” and tend to “manufacture” documents using false swearing, robo-notaries and surrogate signing through the use of alleged hearsay information obtained through third-party information software platforms.  One of our tasks as COTA Preparers is to keep our attorney friends “plugged in” with this new information once we receive it! Even attorneys that have superegos love us, because we want them to win!  We are a team of dedicated professionals that seek to engage in “the fight” because we hold ideals true to the spirit and intent of what our forefathers fought for … liberty and justice for all!

This is why I conduct chain of title assessment (COTA) classes around the country.  Because of my hectic schedule this year (with audits and COTAs and such), I am limiting my COTA 101 Workshops to six (6) in 2013.  They are posted on www.cloudedtitles.com.

As part of the increased need for further training, I have extended the workshop to three (3) days instead of two days. This gives all COTA 101 attendees more hands-on applied advantages to actually performing the analysis necessary to put pen to paper. Attorneys have relied on COTAs in the past as part of case development. COTA analysis is extremely important, especially in determining the issues wherein potential clouds on title exist. Here is one such flow chart that I created as part of a chain of title assessment (this is a sample only and is not intended to be construed as legal advice):

NOTE: The alleged breaks in the chain of title are due in part to sloppy bank record keeping!

Bottom line … there are NOT enough COTA Preparers to handle the onslaught and this scenario is not going to get any better without people who want to learn and help others get “into the game and fight”. If you are interested in getting involved, your emails are always welcomed through this website, attorney or concerned citizen.

By Dave Krieger (Op-Ed)
Today marks the 49^th anniversary of the assassination of the late President John F. Kennedy. I’m quickly reminded of this point in time in our history because of the current state of the real property records in America. They’ve been assassinated too … only it wasn’t one quick pull of the trigger and it didn’t happen in one fleeting moment. It took years to achieve.

I can now successfully add former DOCX President Brown to the list of suspected economic terrorists (along with Kerri Panchuk from Housing Wire