2member instructs, but in its own name and not the name of the member.
, as some Oregon federal judges have observed, nothing more than“
When the foreclosure crisis hit, lenders realized that they needed some way to get the trust deed into
current bank’s hands to initiate the
foreclosure process. Since MERS®
’ existence was virtual, and with no
real employees, whenever it came time to assign a mortgage or trust deed, a MERS®
“Assistant VicePresident” or “Assistant Secretary” would execute the assignment on behalf of
in their “official”
capacity. But since MERS®
has no such officers, it simply created mass “Corporate Resolutions”,
appointing one or mor
e low level member bank employees to“
assignments.It is important to note that these MERS®
“officers” only made
i.e. from the originallender whose name first appeared on the public record, to the foreclosing lender. In Oregon, this meansthat ORS 86.735(1) requiring the recording all of the intervening assignments, was intentionallyignored.
Hence, there was never a “chain of title” on the public record show
of theloan. As a result, in Oregon, no one - including the homeowner -
knows for sure if the bank foreclosingthe loan has any legal right to do so.
reason to believe many of the banks did not have the legal right to foreclose. In everyOregon foreclosure I have witnessed during the last twelve months, where the loan was securitized into
there is substantial doubt that the foreclosing bank, acting as the “trustee” of the securitized
loan pool, actually had any right to do so. This is due to the strict tax, accounting, and trust lawsgoverning the REMIC securitization process. The short explanation is that if the loan was actuallytransferred into a loan pool between 2005
2008, there would be no need for an assignment to thattrustee today
it would have already been in the pool and the trustee already had the right toforeclose; but if the loan was not transferred into the pool back then, it cannot be legally assigned tothat trustee today. Although it is not always easy to locate, thePooling and Servicing Agreement, or"PSA," governing the trustee's REMIC, will contain a "Cut-Off Date." That date is the deadline for thesponsor of the REMIC to place all of the notes and trust deeds (or mortgages) into the trust. After thattime
[subject to limited exceptions - which do not include the transfer of nonperforming loans into thetrust - PCQ]
, no new loans may be added into the pool. For example, if the REMIC was created in early2006, the Cut-Off Date is likely to also be in 2006. This would mean that a bank, acting in the capacity of a REMIC trustee that is foreclosing a homeowner today, would not have the legal right to do so, if thetrustee only recently received the trust deed assignment -
since the REMIC had closed years earlier
.This is fraudulent. Yet the practice has been so widespread, that foreclosures routinely adopt this"single assignment"
(or “A to B”)
model, and it became an assembly line business for MERS® and itsmember banks. The assignment documents were typically prepared in advance by foreclosure millattorneys and foreclosure trustee companies such as ReconTrust, uploaded them to a servicer orforeclosure processing company link, to be signed,
, by robo-signers. Then the assignments
were shipped over to notaries,who never actually witnessed the MERS®
“officer” sign a document.
Once completed, the original assignment document was sent via overnight delivery to the foreclosuretrustee to record and thereafter begin the foreclosure. In many instances, the foreclosure trustee, (a)acting as a MERS®
“officer” would sign the assignment document transferring ownership of the loan to a
lender, then (b) the same person would sign a document appointing their company as the SuccessorTrustee, then (c) that same person would again sign the Notice of Default, which formally commencedthe foreclosure.
It is this “
need for speed
” that epitomizes the
MERS® business model.