THE REAL QUESTION IS: By issuing this statement, did MERS shoot itself in the foot?

PART 1 OF 3 By Dave Krieger Managing Member DK Consultants LLC (Op-Ed) March 6, 2013

(SAN ANTONIO) – I did some checking around the country to find out whether the hierarchy with Mortgage Electronic Registration Systems, Inc. (“MERS”) ever filed such a rebuttal piece to a county land record audit. I could find none. So I consulted with several people familiar with the audit to ask them why MERS CEO Bill Beckmann would cause such a piece to be published in a major metropolitan newspaper and they all pointed to the fact that the audit was conducted by my firm. Granted, the 179-page final audit is probably the most comprehensive audit of MERS-related assignments and peripheral documents thus far in U. S. history. I am sure that as time progresses, that other firms will conduct more substantial audits involving more internal review processes. Not surprisingly, it’s no secret that MERS communications folk are monitoring websites all over the country to see what the “other side” is saying about them and my website is no different. But taking out two-thirds of a page in the American-Statesman? Was that really a wise move? Most of the media contacted me to ask me about the rebuttal and especially about MERS’s typical knee-jerk response when confronted with issues: “We didn’t do anything wrong.” My response was: “Well, if MERS hasn’t done anything wrong, why is everybody suing them?” Shortly after this piece ran, I got a call from the law firm that assisted me with the legal opinion on this audit. The paralegal and his attorney were beside themselves because of the “tone” of this rebuttal piece. This is where the “shoot yourself in the foot” scenario seems to play itself out. The ad to the Commissioner’s Court looked more like a public relations campaign to me.

As to MERS’s responses to media inquiries, I was surprised to hear the traditional denial statement: “We haven’t done anything wrong” when the audit itself wasn’t published until much later in the day and the media was responding to the press release issued by Williamson County and not so much to the video presentation posted on I made sure my video crew got that presentation launched within 24 hours and this is what appears to be at issue with the folks in Reston, Virginia. One would first have to understand what MERS is in order to be able to understand why MERS is contractually in their mortgage or deed of trust. Heck, most attorneys attempt to argue around this fact and MERS always wins. After MERS wins, they rub their win in the noses of all of the homeowners and opposing counsel with blurbs from their PR department. I guess if an attorney argues or pleads a case improperly, they’re going to get shanked. Remember that MERS’ PR machine is designed to keep the hype about the positive aspects of MERS “out there”; however, it does not appear that until the massive spate of lawsuits manifested themselves and the April 13, 2011 Consent Order was released did most in the legal community really realize what was happening. In reality, what MERS boasts is true. They are a “tool” (they call themselves a “utility”) … I call them a “tool”. The word “tool” to me describes more of a slang vernacular to describe the behaviors of those who have been vested with some sort of MERS authority; albeit this is a private corporation that gets its “PR authority” from other private corporations, like the American Land Title Association, Moody’s and Covington & Burling. As Virginia delegate Bob Marshall told me one afternoon in a phone call that he couldn’t figure out where MERS gets off acting like it has some sort of governmental authority to operate when it’s just a private corporation. So the PR campaign has now proliferated itself into the mainstream media, where MERS has taken to the print media in Austin, Texas to cater to the need to put spit polish on its business model, albeit my take of what they’ve done is unimpressive. In my book, what MERS is doing works much the same way as Hitler’s PR arm during his Nazi regime … “keep feeding the masses with repeated information and soon they come to believe it as the truth ...” Couple that with judges who are pro-bank and do half of the fact-finding for the financial institutions during open court and you’ve got a recipe for injustice. When you look up most of these judges’ financial statements, you’ll discover that many of them have investments that are backed by these securitized mortgage pools. One Austin federal judge has 15 Ginnie Mae portfolios listed in his most recently-publish financial statement. It’s no wonder MERS thinks it has a “leg up” in the game. All its attorneys have to do is simply remove the case to federal court and they know the pleadings won’t survive because in many instances, the pleadings are drafted to federal standards of pleadings that won’t survive the likes of Ashcroft v. Iqbal and Bell Atlantic v. Twombly. I also see where a lot of federal judges just can’t seem to understand the basic principles of quiet title actions, which in essence, really are the jurisdiction of state judges. This again all comes down to how to pick your battles and this time, as I’ll explain further in the next segment, how MERS needs to learn to pick its battles.

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