Pro Se Litigant’s Eloquence on MERS Split of Note and Mortgage

Pro Se Litigant’s Eloquence on MERS Split of Note and Mortgage
Posted on March 13, 2010 by Neil Garfield

A pattern with Wells Fargo that we have seen is that they make the representation that they are the holder of the note and the investor,which is a blatant lie in most cases. Then AFTER they get the order they want, they admit that through “inadvertence” they misrepresented the facts to the court. Then they say it is not a material misrepresentation and they produce some additional fabricated documents like a limited power of attorney which upon close reading grants nothing to anyone, is subject to many conditions that are not readily determinable and is signed by party of dubious authority and dated under questionable circumstances (if the document existed before why didn’t they use it?).Editor’s Note: I think the following addresses the MERS and nominee issue very well. The entire proceedings can be seen at delasallemtdargument.

The very basic question that ought to be asked is why any of these intermediaries exist. When you think about it, there can only be one reason: to hide what they are really doing and to provide a mechanism to diminish the possibility of multiple claims from multiple participants in the securitization chain. Nobody needed MERS or any of these other foreclosure entities when the identity of the creditor/lender was clear.

Now they don’t want it clear. The success of foreclosure in both non-judicial and judicial states depends entirely on creating the appearance of propriety through a maze of unnecessary entities whose sole purpose is to provide plausible deniability to the pretender lenders if and when it comes to light that the wrong party is attempting to foreclose and they are doing it contrary tot he interests of the real creditors (investors) and contrary to the interests of the homeowners who are now subject to financial double or multiple jeopardy.

A pattern with Wells Fargo that we have seen is that they make the representation that they are the holder of the note and the investor,which is a blatant lie in most cases. Then AFTER they get the order they want, they admit that through “inadvertence” they misrepresented the facts to the court. Then they say it is not a material misrepresentation and they produce some additional fabricated documents like a limited power of attorney which upon close reading grants nothing to anyone, is subject to many conditions that are not readily determinable and is signed by party of dubious authority and dated under questionable circumstances (if the document existed before why didn’t they use it?).

“The note and the mortgage are inseparable. The former as essential, the latter as an incident. An assignment of the note carries the mortgage with it. An assignment of the latter is a nullity.”
MERS, Your Honor, has corrupted this basic black letter law of mortgages that makes a split of the security instrument from the note impermissible.
First, it names itself as the beneficiary of the deed of trust, thus splitting the deed of trust from the note, and then it attempts to rectify the split by stating that it is acting in some form of restricted agency relationship solely as the nominee for the lender.
In doing this, MERS attempts to do two things that are inconsistent at the same time, and it is this ambiguous contradictory language that fails the title. Why?
First, because as the beneficiary of the deed of trust, MERS has suffered no default. Only the current holder of the note has suffered a default, and only the current holder can enforce the note.
And secondly, even if it could be argued that MERS is the agent for the original lender, America’s Wholesale Lender — and Your Honor, it is important to note that within the four corner of the document, within the four corners of the deed of trust, there is nothing that establishes that agency relationship.
But again, even if you argue that it exists, there’s nothing that establishes an agency relationship between MERS and the alleged current owner of the note according to the bank servicer, Bank of America; U.S. Bank as trustee for the structured adjustable rate mortgage, 19 excess 2005. They are apparently, allegedly, they are the current holder of the note.
Yet, MERS takes the position that through the deed of trust all of these agency relationships are implied, and that it can go forward based upon these implications and foreclose even though the four corners of that document, of the deed of trust, carries only one signature, mine, not the signatures of MERS, nor its principals.
They seem to contend that with this implied agency agreement that is in violation of the statute of fraud that the U.S. Supreme Court ruling of Carpenter v. Longan prohibiting
the splitting of a mortgage from the note can somehow be ignored.
Your Honor, it cannot. It cannot be ignored without the U.S. Supreme Court going back and reversing Carpenter v. Longan.


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