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

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

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Published by DinSFLA
http://stopforeclosurefraud.com
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 accordin
http://stopforeclosurefraud.com
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 accordin

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Published by: DinSFLA on Jul 08, 2010
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA--o0o--BERENICE THOREAU DE LA SALLE,) Case No. 2:09-cv-02701-MCE-KJM)Plaintiff,) Sacramento, California) Wednesday, February 10, 2010vs.) 10:04 A.M.)AMERICA'S WHOLESALE LENDER,) Hearing re: defendant's motionet al.,) to dismiss.)Defendants.))TRANSCRIPT OF PROCEEDINGSBEFORE THE HONORABLE KIMBERLY J. MUELLERUNITED STATES MAGISTRATE JUDGEAPPEARANCES:For Plaintiff:BERENICE THOREAU DE LA SALLEPro SeP.O. Box 93991687 Forest TrailMammoth Lakes, CA 95814(760) 937-5645For Defendants: BAHAREH MOSTAJELEANBryan Cave, LLPTwo Embarcadero Center, #1410San Francisco, CA 94111(415) 675-3400Court Recorder:(UNMONITORED)U.S. District Court501 I Street, Suite 4-200Sacramento, CA 95814(916) 930-4072Transcription Service:Petrilla Reporting &Transcription5002 - 61st StreetSacramento, CA 95820(916) 455-3887Proceedings recorded by electronic sound recording;transcript produced by transcription service.
 
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1SACRAMENTO, CALIFORNIA, WED., FEBRUARY 10, 2010, 10:04 A.M.(Call to order of the Court.)THE CLERK: Calling Civil Case 09-2701-MCE-KJM, De LaSalle v. America's Wholesale Lender. This matter is on fordefendant's motion to dismiss, Your Honor.THE COURT: Good morning. Appearances please. Ifyou could state your name for the record?MS. DE LA SALLE: Yes. Berenice Thoreau De La Salle,plaintiff.THE COURT: Good morning.MS. MOSTAJELEAN: Good morning, Your Honor. BaharehMostajelean on behalf of defendants.THE COURT: Good morning. I have reviewed theparties' filing in this matter.In this case I have no particular questions. What Iwould allow is each side to argue briefly if they believesomething is not fully covered by the papers, or if in responseto the reply, Ms. De La Salle, you have something else you'dlike to say. But I'm going to start with the movant. I'm justkind of making clear the ground rules.MS. DE LA SALLE: That's fine.THE COURT: And then if I have questions based onwhat you say, I'll let you know.So, Ms. Mostajelean?
 
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2MS. MOSTAJELEAN: Your Honor, do you have apreference on whether I come to the podium, or stay at thetable?THE COURT: You can stay at the table.MS. MOSTAJELEAN: Thank you, Your Honor.Your Honor, we don't really have much to add thathasn't already been briefed, but I would just like to reiteratethat we request that this Court grant our motion to dismisssimply because plaintiff's eleven causes of action, themajority of them are premised on an untenable legal theory thatthese defendants do not have the right to foreclose.The loan documents that plaintiff signed establishthat, in fact, they all do. The deed of trust which was signedin 2005 states that the lender is AWL, the trustee isRecontrust and the beneficiary is MERS.On page 3, it grants to the trustee, Recontrust, thepower of sale of the subject property, and on page 12 itspecifically states that the note or the interest can be soldalong with the security interest without prior notice to theborrower.So this -- these agreements, the plaintiff agreed toare the basis for the defendant's right to non-judiciallyforeclose, and defendant has not, as plaintiff has not beencurrent on her loan. She is currently in default.These are -- the defendant's are pursuing remedies

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