When I set out to begin my quest to discover the goings-on behind the scenes of the 2008 financial disaster, I had no idea that my research was going to develop into a widely-circulated book or the design of a specific chain of title assessment protocol. I never understood why Americans lacked a real financial education until I began to understand for myself what happened to me, happened to a lot of other people as well.

It became my objective to teach my research in a workshop format … so I did. I then realized that my book made an impact on others who wanted me to expand my skills and expertise in doing real property land record audits for the county recorders and clerks themselves. I did not care about becoming front page news. I cared about my fellow man … about the condition of his wealth and this grew into the concern over the integrity of not just my chain of title but millions of others as well. My focus became national in nature. I held myself out there. I realized that I couldn’t change the world. I can’t change America. Change must come from within, by example.

Yes, it is a fact that DK Consultants LLC did conduct a Forensic Examination of the official real property records of Osceola County, Florida, which was an extension of the type of the audit examination that DK Consultants LLC conducted in the official real property records of Williamson County, Texas.  Not only does it look good on your resume, but at the end of the day, you’ve done something that has impressed someone in government to change things for the better.

But I can’t do this alone and neither can you.

Similar types of examinations have taken place in Guilford County, North Carolina; Southern Essex County, Massachusetts; and more recently in King County, Washington (on behalf of the City of Seattle). Some sort of “action” resulted in each case (excepting Seattle’s audit), wherein publicly-elected officials either filed suit or went after the perpetrators in civil fashion. In Osceola County, Florida, however, the first ever criminal application of a forensic examination allegedly took place. Despite the negative publicity, we collectively affected American history and sent a message to the powers-that-be that we know what is going on.

Awakening a sleeping giant must be the last thing on one’s mind when they’re pouring through land records looking for clues to violations of law. But without your help, no one else will be held to a higher standard. It is sad when politics impedes justice. The point is, this will not be my “Last Tango in Paris” (so to speak).

Al West has come up with a way for California counties to self-finance audits of their land records! Not only are these audits self- financed, there is a specific fund dealing with mortgage fraud that will finance criminal investigations. We are researching other states to see if similar statutes exist.

The point is: All of you reading this newsletter right now are sitting on a gold mine overlooking the American Frontier. Collectively, we are pioneers in a country fraught with deceit and fraudulent impropriety when it comes to protecting the sanctity of our property recording systems and each of us can take our place in history by getting educated and getting “in the game”.

History will not change for the good of mankind until you step up and make a difference. You must step up and make a difference and take your place in American history!
Not only did the examiners involved with both of these examinations put themselves “out there”, they may have put themselves at risk. But that is what America is all about.

Need I bring up Paul Revere and William Dawes and their role that changed American history.

Had they not conducted their famous midnight ride through village and town, waking up the townspeople, collectively, history would have told a different story because there would have been a different outcome.

Our real property records were started back in those days. They were designed to protect our wealth, our culture, our history and our personal futures. We cannot sit idly by and wait for others to rise to the occasion. If you’re reading this newsletter, it is because you care about your fellow man and you’re dealing with your own crisis, both of which depend on a positive outcome no matter what the cost.

Imagine that I would rewrite Henry Wadsworth Longfellow’s poem to read a bit differently:

Listen my children and you shall hear,
The legendary records that I hold dear;
The banks and their minions that caused us harm,
Which spread to every village and farm.

Shall we not rise up and fight the good fight?
And study to be vigil through day and night?
How then shall we answer when times are terse?
When asked to contribute, what shall be your verse?

You have the opportunity to make a difference in American history to the benefit of yourself and your fellow man. I am but one person with a mission to bring justice to an otherwise unconscionable scenario.

Every day I pray for and praise those dedicated individuals who toiled over the research, pouring through land records, specifically knowing what to look for, based on their training and research they inherited from conducting chain of title assessments for both themselves and others.

You are part of a skill set that needs to grow and your mission is to prepare yourself to become part of our country’s future because more audits and forensic examinations are going to become commonplace and we need leaders and researchers to train into become the valiant stewards of our real property records, running for office with the purpose of fighting to maintain the integrity of the records our forefathers fought and died for.

This is one of the reasons I go around the country teaching the basics of chain of title.  I personally have conducted over 100 of these examinations (not including the county real property records examinations themselves) involving homeowners’ chains of title.  It does not take great effort to rise to the occasion, just the knowledge gleaned from past experience.

The only way to get “experience” is to train for it.   When you’ve done a few COTAs, you can begin to see the given similarities and legal theories come to light.  This makes you a viable candidate for consideration when it comes to auditing and conducting forensic examinations of the real property records themselves (for the county clerks, registers of deeds and recorders).  Yes, you get paid for the work (it’s not handsome, but it is for public service and for the good of mankind) … and your work goes down in history!

You have the power to evoke change.

Just because there are stumbling blocks does not mean they cannot be overcome.  The pendulum is swinging back in favor of homeowners, provided their cases are properly plead and argued. Many attorneys I have spoken with are convinced that chain of title is the real issue here. Collectively, we need to get on top of this. This is why we have COTA Workshops because they get to the heart of the chain of title in such a way as to prepare you for your future contribution.  This is where it all started, way back when.   Be of part of history and get educated!  

I invite you to the October Challenge, so you may contribute a verse!

This is Part 3 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 Parts 1 and 2 of 3 on https://www.cloudedtitles.com.

As long as we’re going to “set the record straight” … one has to understand what is posted on the Williamson County Clerk’s website at http://www.wilco.org:

Texas Property Code Sec. 11.001. PLACE OF RECORDING. (a) To be effectively recorded, an instrument relating to real property must be eligible for recording and must be recorded in the county in which a part of the property is located. However, if such an instrument grants a security interest by a utility as defined in Section 261.001, Business & Commerce Code, the instrument may be recorded as required by Sections 261.004 and 261.006 of that code, and if such instrument is so recorded, the lien and the secured interest created by such instrument shall be deemed perfected for all purposes.

192.007 To release, transfer, assign or take another action relating to an instrument that is filed, registered or recorded in the office of the county clerk, a person must file, register, or record another instrument relating to the action in the same manner as the original instrument was required to be filed, registered or recorded.

I emphasized the last sentence in bold-faced type. It clearly says a person MUST FILE, no exceptions, including MERS-originated mortgages and deeds of trust any document that affects the original recorded instrument (that includes all of these assignments the banks using the MERS business model and electronic database largely ignore … to save money!

Again, as I pointed out in Part 2 of 3 of this rebuttal series, pricey assertions can come back to bite you in the butt:

• As to the paragraph that talks about the borrower naming MERS as the beneficiary of the deed of trust? 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 when they went to the closing table, why is the Williamson County real property records office now packed with concerned homeowners searching through their documents since the audit was released, searching for MERS-related documents?
• 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?
• Again, in the paragraph above the bullet points in the ad MERS ran, it says, by using the MERS system, “the need for certain assignments is eliminated, thereby reducing paperwork and errors and lowering the overall cost of home financing. This role is disclosed and explained to the borrower on the first pages of the deed of trust, which they have signed.” Sure, the borrowers signed the document, but in assuming that the need for all of the assignments that SHOULD HAVE BEEN recorded in the land records is eliminated clearly violates Section 192.007 of the Texas Local Government Code. I also have to reflect back as to “who” explained this to the borrowers at closing. Again, most I’ve talked to have no idea who MERS was or what they represented.
• The so-called “explanations” MERS claims are provided in deeds of trust are seemingly vague and ambiguous, for the purposes of arguing whatever their attorneys want to argue to “stay in the game”. Further, I’d like to know who the “successors and assigns of MERS” are as shown under TRANSFER OF RIGHTS IN THE PROPERTY, because this definition sure as hell isn’t defined under Definition “C” or “E” in the long-form deeds of trust. In fact, those “definitions” don’t even mention who the successors and assigns of MERS are or how they’re involved contractually. That tells me a lot about the deficiencies in MERS’s business model.
• To respond point-for-point on the “bullet points” in this ad:
  1. (1) Disclosing liens to property in any given county does NOT disclose who theintervening assignees are that are transacting business outside of the county land records.
  2. (2) Most of the Texas Clerks had no idea that the definition giving MERS any authority in the land records as a “national book entry system” was enacted; it got past them.
  3. (3) MERS used to foreclose until they were challenged to the point of issuing a Policy Bulletin (2011-5) telling its members that as of July 22, 2011, they were no longer to foreclose in the name of MERS; thus, this statement is in my book, a “half-truth”.
  4. (4) Whether anyone has ever wrongfully lost a home due to MERS is not really the issue here. What is at issue is the robosigning and suspect notary fraud and multiple signature variations the audit uncovered of those suspected of manufacturing documents to effectuate foreclosure.
  5. (5) Cloud on title by using MERS? Instead of owning up to the mistakes being made by its “certifying officers” (who are nothing more than employees of some servicer or third- party document manufacturer like DOCX, whose President is going to prison) and taking responsibility for it, Beckman eludes to the fact that title companies support MERS. I don’t see anywhere in this argument where Schedule B: Exclusions is mentioned in title policies, wherein the title company won’t insure a chain of title if the “defects” aren’t recorded. How convenient is that for MERS? Is Beckmann then drawing a legal conclusion here by saying having MERS as a beneficiary or mortgagee the problem? What about MERS as a nominee? The combination of the two seem to give the MERS “officers”, like the attorneys working at the foreclose mills the impetus to sign whatever they want in the name of MERS and attempt to convey notes into trust pools that MERS doesn’t have the apparent authority to do. And what about those intervening assignees whose interests aren’t recorded in the land records in violation of Section 192.007? I have an idea … why don’t we let the courts (or juries) decide what constitutes a “cloud on title” instead of Beckmann unilaterally drawing his own conclusions?
  6. (6) MERS provides transparency? Really? Even Jeff Thigpen challenged this as mere folly in the PRIA convention in San Antonio where he and Beckmann were panelists. Thigpen got more applause than Beckmann did. Remember, MERS disclaims accuracy on its website because its website is data-inputted by its member-subscribers with no regulatory oversight. This means what’s on the MERS database that shows up in Servicer ID searches is what the members WANT YOU TO SEE, whether it’s accurate or not. The intervening assignees still aren’t there … so I question this “transparency” argument. Horse puckey.
• Beckman then admits that MERS reduces fees paid to county recorders. No wonder the county services are being curtailed. The county recorders rely on the assignments of intervening owners for the revenue they need to keep their services going as their constituents expect. So it would seem that MERS isn’t doing the Texas County Clerks, or any other recorders for that matter, any real favors. But the MERS subscribers (the banks and their servicers) save billions annually.
• By admitting that the possibility exists that MERS could create title issues by NOT insisting that its members MUST RECORD their assignments goes right to the very heart of the argument against MERS for its members violations of Section 192.007 of the Texas Local Government Code.
• Beckmann says the allegations in the audit are unfounded … well … give it time Bill, one of these days, it will be proven just what MERS members did to the land records using the MERS business model, which I still say is flawed and screws the counties out of billions of dollars a year in recording fees. Maybe the foreclosure mill attorneys who supposedly signed all of the documents reviewed in the audit will have to answer to grand juries. They should be nervous, Bill.
• “The key fact is, MERS WORKS.” I’m about to vomit. MERS works for its members. MERS works for Wall Street. MERS didn’t save me any money. MERS will end up costing homeowners money in the long run. MERS didn’t save me any money. I haven’t heard MERS tell any of these so-called Borrowers at closing that if you don’t understand what MERS is, don’t sign this mortgage or deed of trust until you consult an attorney.

Again, a glorified PR stunt with little or no probative value; but lots of seemingly viable admissions to violating Texas Local Government Code. MERS even faxed this article directly to Commissioner Lisa Birkman of Precinct One in Williamson County, which contained Texas case law handy to support MERS arguments. Those cases weren’t included in the advertisement here.

This is why MERS ran this article. The audit hit a nerve. If it didn’t, why respond like this unless you’re trying to do damage control? I hear the attorneys who signed a lot of these Williamson County recorded documents are “nervous”. Again, they should be.

Dave Krieger is the author of the book Clouded Titles and Managing Member of DK Consultants LLC, San Antonio, Texas, whose firm was retained to conduct the Williamson County real property records audit.

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.