1Dear [FIRSTNAME], The so called MERS defense as a foreclosure defense strategy in California is the topic of this issue of the

newsletter. MERS refers to Mortgage Electronic Registration Systems, Inc. and the defense is that MERS does not have standing to commence a foreclosure in California. While this defense is still widely used by certain people, the fact is that the MERS defense has been rejected by the California Courts and at least one United States District Court in the Northern District of California. --------------Reminder: THE AUTHOR NOW SELLS COLLECTIONS OF SAMPLE LEGAL DOCUMENTS AT A HUGE DISCOUNT! VISIT THE WEBSITE BELOW FOR MORE INFORMATION. http://www.scribd.com/LegalDocsPro/collections --------------It needs to be stressed that some loan documents such as the deed of trust state right in the document that the borrower consents to MERS having authority to initiate foreclosure. Anyone considering using the defense that MERS has no authority to initiate a foreclosure needs to read this newsletter issue and then read their deed of trust. In one published case from a California Court of Appeal, the plaintiff actually attached a copy of the deed of trust to the complaint in which they argued that MERS had no standing to initiate the foreclosure. The problem was that the deed of trust mentioned MERS by name! Keep reading to find out what happened. The trial Court sustained a demurrer to the complaint and all causes of action therein without leave to amend, a California Court of Appeal affirmed that order in Gomes v. Countrywide (2011) 192 Cal. App. 4th 1149, 1157 where the Court stated that, “As an independent ground for affirming the order sustaining the demurrer, we conclude that even if there was a legal basis for an action to determine whether MERS has authority to initiate a foreclosure proceeding, the deed of trust -- which Gomes has attached to his complaint -- establishes as a factual matter that his claims lack merit. As stated in the deed of trust, Gomes agreed by executing that document that MERS has the authority to initiate a foreclosure. Specifically, Gomes agreed that "MERS (as nominee for Lender and Lender's successors and assigns) has . . . the right to foreclose and sell the Property." The MERS defense may work in other parts of the country and in some bankruptcy courts where borrowers have had some success with the argument that since MERS is a "nominee" and "nominee" is not defined in the loan documents, that it does not have standing to initiate foreclosure. The MERS defense has not been particularly successful in California, mainly because of these

reasons: 1. Non-judicial foreclosures only require that the trustee on the deed of trust conduct the foreclosure. 2. The deed of trust is recorded and so are any substitutions and assignments. In other states MERS had tried to circumvent the recording statutes by not recording these transfers with the County recorder. 3. The borrower who is also known as the Trustor has signed the deed of trust and voluntarily consented to a 3rd party conducting the Trustee's sale, regardless of who the beneficiary is. Despite several Court decisions rejecting the MERS defense many people are still under the mistaken impression that the defense is valid. Attorneys or parties in California who would like to view a portion of a 22 page sample complaint to stop a trustee foreclosure sale that includes a verified complaint, ex-parte application for temporary restraining order with points and authorities, sample declarations, and a proposed order sold by the author can see below. http://www.scribd.com/doc/146074976/Sample-California-Complaint-to-Stop-Foreclosure-Saleby-Trustee If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm It would be greatly appreciated if you would visit the website at http://www.legaldocspro.net and give it a like with Google + if possible. Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995, and recently relocated to Asia. Copyright 2013 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information

contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.

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