FEBRUARY NEWS ON LITIGATED MATTERS FROM CONSUMER RIGHTS DEFENDERS. – 818.453.3585 – Offices Nationwide
We are getting some strong results on our “lack of standing” arguments. [Bank may not own
the right to enforce the note and thus, lack standing to defend]. Some astute judges are “getting it” at long last.
Lenders have been having problems showing they own the note and rights to foreclose.
Our clients are winning on such points, finally resulting in TRO’s being granted stopping
foreclosures, especially in California.
Secondly, recent rulings about MERS seem confusing. Some courts are saying MERS is
sufficiently appointed to act as a “nominee” for the lender/beneficiary because they are
listed in the Note or Deed of Trust as such and the borrower “signed” the document giving
MERS such rights. Other courts disagree.
Our attorneys give a new twist on this position in countering MERS…..
Just how is a separate NON-SIGNING entity [MERS] able to bind or be bound to a
designation by a lender [in the Note or DOT] without some form of acceptance and
acknowledgement by MERS itself, generally missing from signed notes and DOTs?
Example. :Homeowner A contracts with Gardner co. B to cut A’s lawn. B in his simple contract
says, “I will give my duty to cut the lawn to Mr. C” an unknown person. Can Mr. C’s role be
challenged as unenforceable since C never consented in writing to the contract? MERS stands
as being in “C’s” shoes and never signs anything binding itself to act for beneficiary and generally
is an unknown entity to most borrowers at the time the escrow docs are signed.
We view this to be a failure of B’s delegation of duties to C by reason that the mere naming [nomination]
of C by B was never accepted in writing by C [vis.,equal dignities doctrine, or other contractual theories]
and A should not be bound to this term to have his lawn cut by an unknown 3d party. Why?
C never accepted the delegation of duty. So, B must cut the lawn since A nor C never signed off
in agreement to the nomination. Some Fed courts esp. BK courts take a similar position that MERS
has no rights or powers to act. But the matter is far from settled universally.
Listen all, being creative is very important since the state and federal courts are at loggerheads
about what MERS can and can not do for beneficiaries. Use this argument if you like and let us know if it works.
Consumer Rights Defenders is now taking litigation cases. Our attorneys and experts are standing
by at 818.453.3585 to assist. We have a low cost document review program. Call for free consultation
and ask for Steve or Sara.
Here is our Litigation Talley from last month, nationwide:
4 TRO’s granted and foreclosures enjoined. 12 new suits filed.
3 settlements with new loan arrangements including forebearances and forgivenesses and loans retooled at 3% fixed for 6 years.