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Who OWNS Foreclosed U.S. Properties?, Part II: the role of MERS

Articles & Blogs - US Commentary

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In Part I, “Scam in the making”, I explained how Wall Street created the U.S. housing-bubble and its concurrent Ponzi-scheme – with the full assistance of its accomplices: U.S. rating agencies and U.S. regulators. I also explained why it had to be obvious before they started creating this bubble that it would end with an unprecedented wave of foreclosures.

Because a big part of the bubble/Ponzi-scheme was “mortgage securitization” (which meant the bank originating the mortgage no longer held title to the mortgage), and because the U.S. financial crime syndicate knew there would be a huge wave of foreclosures, it had to invent an entity which could serve as a proxy in foreclosure proceedings – representing all of the players in these debt “daisy-chains”.

This was why MERS was created in 1995. As I wrote in Part I, MERS is nothing more than a confidential electronic registry which exists only to “track mortgages and the changes of servicing rights and mortgage ownership”. In other words, it has no proprietary interest in these mortgages.

The reason why that last fact is so important is because of the fact that Wall Street had created such convoluted chains of “ownership” that even in court proceedings the banksters are unable to show any party in these chain of transactions as having clear title to the mortgage. Wall Street's plan was to send MERS (nothing but a glorified, electronic clerk) to all these foreclosure proceedings and allow MERS to act as if it was the mortgage-holder in these proceedings.

However, it is one of the oldest principals of our Western legal system that in civil proceedings any party wanting to bring an action before the court has to have “standing”. Typically, this is defined as a direct, proprietary interest in the subject of the trial. Clearly, MERS has no proprietary interest – and thus in several legal decisions it has been found to have no right to initiate foreclosure proceedings.

As I pointed out in Part I (via an article by Edward Harrison), one of these court cases has already been upheld on appeal – setting the stage for courts to broaden the previous rulings. Until now, judges who have ruled that MERS has no “standing” have only done so narrowly, on a case-by-case basis. The next step in this natural legal evolution (the law always moves in “baby steps”) is for courts to rule that MERS has no standing, period!

When that day occurs, it will immediately create two, huge legal ramifications. First of all, there would be no further point in the bankers even showing up to a trial over a foreclosure unless the bankers can sift through the deliberately complicated maze of transactions and clearly identify a party with genuine, legal title over a mortgage. Otherwise, not only would the bankers face a summary dismissal of their action, but it's very possible that the judge in question would simply nullify the entire mortgage – as recently happened in a case in New York.

What this means is that any American homeowner whose mortgage has been “securitized” must take their case to court if/when a foreclosure proceeding is commenced against them. The worst-case scenario is that the foreclosure proceeding is dismissed and the homeowner can stay in his home, and not even bother with making any more payments. Why send cheques to a bank when you can live in your home for free – and never have to worry again about foreclosure?

However, once MERS is found to (broadly) have no legal “standing”, this will effect far more people than those about to be foreclosed. Another important concept in our legal system involves the concept of “discovery”. Its relevance in this particular situation is as follows.

If Americans who have already lost their homes to foreclosure “discover” today that the party who was officially behind these foreclosure proceedings (which in many cases is MERS) never had legal standing to foreclose on their property (whether that took place five days ago or five years ago), this means that the foreclosure proceeding was legally invalid.

What this means is that courts will very likely find that these “foreclosure victims” are still the legal owners of their homes. This not only is a crippling blow to the U.S. financial crime syndicate, but an even more serious blow to people who have been buying these “foreclosed” properties.

If the bank who “sold” them the “foreclosed” property never had legal title then obviously that bank had nothing to sell to the “buyer”. In other words, many (if not most) of the people who have bought “foreclosed” properties in the U.S. over the last few years may own nothing.

This becomes a double loss for the banks. Not only do they end up with nothing with respect to the original mortgage they claimed to own, but the subsequent buyer who is stripped of their purchase will then sue the banker for the full purchase price, all of their related costs (moving costs, furniture, etc.) plus the judge will very likely tack on some steep “punitive damages” to punish the banks for creating this legal nightmare and attempting to “foreclose” and “sell” properties they never owned.

As I pointed out a few weeks ago (see “Bankster Sues Bankster – AGAIN”), even if Wall Street banks can survive the massive losses they are incurring as their Ponzi-scheme unravels, there is no possibility of them surviving the tidal wave of litigation which is just beginning.

On a related subject, it was recently reported that the huge stash of money which Wall Street has in a “savings account” with the Federal Reserve now exceeds $1 trillion. Doesn't it seem odd that with Wall Street banks regularly bragging about how much money there are making with their own, in-house trading that they would leave a trillion dollars sitting in a savings account during this fantasy-rally in U.S. markets (which they helped to engineer)?

Obviously the banksters dare not admit to their shareholders or the media that they have stockpiled a trillion dollars as a down-payment for all the pay-outs they will be forced to make in future litigation. Instead, they just hide this money with the Federal Reserve and pretend it doesn't exist. Meanwhile, as I also pointed out in a recent commentary, U.S. banks are holding at least 5 million already-foreclosed homes off of the market. No point in trying to “sell” these properties if they don't actually own them.

There is one potentially serious consequence for average Americans as a result of this crucial legal precedent. If millions of Americans suddenly discover they have essentially “free homes” (and with actual housing inventories at least three times greater than what the NAR pretends), this could be the catalyst for another huge drop in house prices. A homeowner who loses his job, but then suddenly ends up with a “free home” will be willing to accept a much lower purchase price (as he down-sizes to a smaller residence) than a homeowner with an “underwater mortgage” desperately trying just to break-even.

In short, we could be heading for utter chaos in the U.S. housing market. Millions of people who thought they had purchased a foreclosed property could find they own nothing - and have to vacate those premises, remaining in “limbo” until they have successfully sued the bankers responsible for their problems. Millions of homeowners who thought they had lost their homes may suddenly have the keys returned to them. Perhaps most importantly, all “foreclosure sales” will essentially dry-up – since no buyers could be foolish enough to hand a banker a six-figure cheque when that banker may not even have title to the property.

Can you imagine desperate bankers trying to show “clear title” to potential buyers when they can't even demonstrate that in a court-room – armed with a team of lawyers? The only thing which is absolutely certain at this point is that the U.S. housing sector cannot possibly be close to any “bottom” given that the pain is only beginning in this market.

Comments (4)Add Comment
written by kiers, November 06, 2009
an even bigger scare: MERS bypasses local land title and registration requirements. FROM YOUR NYT LINK: "MERS, the Mortgage Electronic Registration System. This bank-owned registry eliminates the need to record changes in property ownership in local land records."

So the brahmins of our society have now opened up a new channel in identity theft. if someone hacks into MERS, a homeowner can wake up one morning and discover he/she deosnt OWN the home! Some banker should get a bonus for this!
written by kiers, November 06, 2009
wow. unfortunately, common sense would dictate that bankers are going to be submerged in lawsuits; but common sense is anti-capitalism. The bankers were let off before, they will be let off again. (they deserve bonuses for having balls). the brahmins of american society played the securitization game without having to bother about ledgering the transfers at each step!

U Mention the banks are holding (hiding) 5 million foreclosed homes. are those "stolen" or did these have clear title?
Jeff Nielson
written by Jeff Nielson, October 27, 2009
Hi Realist.

Legally, I don't think there will be any problem for buyers or sellers with respect to mortgages which do NOT go into default. All of these legal problems arise ONLY once the borrower (the "mortgagor") defaults, and title passes to the lender (the "mortgagee").

The problem is that with most securitized mortgages, NO ONE knows who the REAL mortgagee actually is. Only a legitimate mortgagee can take title of the property through the foreclosure process, and thus only the mortgagee can subsequently sell that property - and thus pass on "clear title".
written by realist, October 26, 2009
I don't know how someone with a securitised mortgage can sell their home and do so in a way that shows they have properly and legally terminated their original mortgage. When someone sells a home that has a mortgage that is not completely paid off, they pay the remaining balance due of the mortgage to the lender. This would come from the gross sales price minus the costs of selling the home. The seller would keep any remainder which would be the equity. But when there is no clear holder of the mortgage, who is the seller really settling with? Is it really the investors? Is it the servicer of the mortgage? Is it someone else? Or aren't they really settling?

There is also a scenario in which homeowners can become innocent victims of this situation many years later. Let’s say you are a responsible homeowner who can and does pay the mortgage every month. You are able to do so for many years until you have finally paid off the mortgage. When you pay off a mortgage, you get a document called the "Satisfaction of mortgage". It shows that you have made all the payments and the mortgage has been paid off in full. Who do you obtain the document from? Again, you have the same problem. Exactly who is the legal holder of the mortgage? The borrower needs to know in order to obtain the Satisfaction of mortgage document.

I can see legal problems from this mess for years to come.

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