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 Landmark Decision Promises
Massive Relief For Homeowners
And Trouble For Banks
By Ellen Brown

 

September 22, 2009 "Information Clearing House" -- - A landmark ruling in a recent Kansas Supreme Court case may have given millions of distressed homeowners the legal wedge they need to avoid foreclosure. In Landmark National Bank v. Kesler, 2009 Kan. LEXIS 834, the Kansas Supreme Court held that a nominee company called MERS has no right or standing to bring an action for foreclosure. MERS is an acronym for Mortgage Electronic Registration Systems, a private company that registers mortgages electronically and tracks changes in ownership. The significance of the holding is that if MERS has no standing to foreclose, then nobody has standing to foreclose – on 60 million mortgages. That is the number of American mortgages currently reported to be held by MERS. Over half of all new U.S. residential mortgage loans are registered with MERS and recorded in its name. Holdings of the Kansas Supreme Court are not binding on the rest of the country, but they are dicta of which other courts take note; and the reasoning behind the decision is sound.  

Eliminating the "Straw Man" Shielding Lenders and Investors from Liability

The development of "electronic" mortgages managed by MERS went hand in hand with the "securitization" of mortgage loans – chopping them into pieces and selling them off to investors. In the heyday of mortgage securitizations, before investors got wise to their risks, lenders would slice up loans, bundle them into "financial products" called "collateralized debt obligations" (CDOs), ostensibly insure them against default by wrapping them in derivatives called "credit default swaps," and sell them to pension funds, municipal funds, foreign investment funds, and so forth. There were many secured parties, and the pieces kept changing hands; but MERS supposedly kept track of all these changes electronically. MERS would register and record mortgage loans in its name, and it would bring foreclosure actions in its name. MERS not only facilitated the rapid turnover of mortgages and mortgage-backed securities, but it has served as a sort of "corporate shield" that protects investors from claims by borrowers concerning predatory lending practices. California attorney Timothy McCandless describes the problem like this:

"[MERS] has reduced transparency in the mortgage market in two ways. First, consumers and their counsel can no longer turn to the public recording systems to learn the identity of the holder of their note. Today, county recording systems are increasingly full of one meaningless name, MERS, repeated over and over again. But more importantly, all across the country, MERS now brings foreclosure proceedings in its own name – even though it is not the financial party in interest. This is problematic because MERS is not prepared for or equipped to provide responses to consumers’ discovery requests with respect to predatory lending claims and defenses. In effect, the securitization conduit attempts to use a faceless and seemingly innocent proxy with no knowledge of predatory origination or servicing behavior to do the dirty work of seizing the consumer’s home. . . . So imposing is this opaque corporate wall, that in a "vast" number of foreclosures, MERS actually succeeds in foreclosing without producing the original note – the legal sine qua non of foreclosure – much less documentation that could support predatory lending defenses."

The real parties in interest concealed behind MERS have been made so faceless, however, that there is now no party with standing to foreclose. The Kansas Supreme Court stated that MERS’ relationship "is more akin to that of a straw man than to a party possessing all the rights given a buyer." The court opined:

"By statute, assignment of the mortgage carries with it the assignment of the debt. . . . Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable. The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust." [Citations omitted; emphasis added.]

MERS as straw man lacks standing to foreclose, but so does original lender, although it was a signatory to the deal. The lender lacks standing because title had to pass to the secured parties for the arrangement to legally qualify as a "security." The lender has been paid in full and has no further legal interest in the claim. Only the securities holders have skin in the game; but they have no standing to foreclose, because they were not signatories to the original agreement. They cannot satisfy the basic requirement of contract law that a plaintiff suing on a written contract must produce a signed contract proving he is entitled to relief.

The Potential Impact of 60 Million Fatally Flawed Mortgages

The banks arranging these mortgage-backed securities have typically served as trustees for the investors. When the trustees could not present timely written proof of ownership entitling them to foreclose, they would in the past file "lost-note affidavits" with the court; and judges usually let these foreclosures proceed without objection. But in October 2007, an intrepid federal judge in Cleveland put a halt to the practice. U.S. District Court Judge Christopher Boyko ruled that Deutsche Bank had not filed the proper paperwork to establish its right to foreclose on fourteen homes it was suing to repossess as trustee. Judges in many other states then came out with similar rulings.Following the Boyko decision, in December 2007 attorney Sean Olender suggested in an article in The San Francisco Chronicle that the real reason for the bailout schemes being proposed by then-Treasury Secretary Henry Paulson was not to keep strapped borrowers in their homes so much as to stave off a spate of lawsuits against the banks. Olender wrote:

"The sole goal of the [bailout schemes] is to prevent owners of mortgage-backed securities, many of them foreigners, from suing U.S. banks and forcing them to buy back worthless mortgage securities at face value – right now almost 10 times their market worth. The ticking time bomb in the U.S. banking system is not resetting subprime mortgage rates. The real problem is the contractual ability of investors in mortgage bonds to require banks to buy back the loans at face value if there was fraud in the origination process.

". . . The catastrophic consequences of bond investors forcing originators to buy back loans at face value are beyond the current media discussion. The loans at issue dwarf the capital available at the largest U.S. banks combined, and investor lawsuits would raise stunning liability sufficient to cause even the largest U.S. banks to fail, resulting in massive taxpayer-funded bailouts of Fannie and Freddie, and even FDIC . . . .

"What would be prudent and logical is for the banks that sold this toxic waste to buy it back and for a lot of people to go to prison. If they knew about the fraud, they should have to buy the bonds back."

Needless to say, however, the banks did not buy back their toxic waste, and no bank officials went to jail. As Olender predicted, in the fall of 2008, massive taxpayer-funded bailouts of Fannie and Freddie were pushed through by Henry Paulson, whose former firm Goldman Sachs was an active player in creating CDOs when he was at its helm as CEO. Paulson also hastily engineered the $85 billion bailout of insurer American International Group (AIG), a major counterparty to Goldmans’ massive holdings of CDOs. The insolvency of AIG was a huge crisis for Goldman, a principal beneficiary of the
AIG bailout.In a December 2007 New York Times article titled "The Long and Short of It at Goldman Sachs," Ben Stein wrote:

"For decades now, . . . I have been receiving letters [warning] me about the dangers of a secret government running the world . . . . [T]he closest I have recently seen to such a world-running body would have to be a certain large investment bank, whose alums are routinely Treasury secretaries, high advisers to presidents, and occasionally a governor or United States senator."

The pirates seem to have captured the ship, and until now there has been no one to stop them. But 60 million mortgages with fatal defects in title could give aggrieved homeowners and securities holders the crowbar they need to exert some serious leverage on Congress – serious enough perhaps even to pry the legislature loose from the powerful banking lobbies that now hold it in thrall.

Ellen Brown developed her research skills as an attorney practicing civil litigation in Los Angeles. In Web of Debt, her latest book, she turns those skills to an analysis of the Federal Reserve and "the money trust." She shows how this private cartel has usurped the power to create money from the people themselves, and how we the people can get it back. Her earlier books focused on the pharmaceutical cartel that gets its power from "the money trust." Her eleven books include Forbidden Medicine, Nature’s Pharmacy (co-authored with Dr. Lynne Walker), and The Key to Ultimate Health (co-authored with Dr. Richard Hansen). Her websites are www.webofdebt.com  and www.ellenbrown.com .

News Release
June 6, 2008 (emailed to Sovereign Trust members)The attached AMENDED CERTIFICATE OF DEBT comes by way of Public Notice that has now matured, total recorded debt owed by the CANADIAN IMPERIAL BANK OF COMMERCE (CIBC) to Sovereign Trust is now more than $1.5 Billion USD. This Public Notice is designed to inform the people of the truth and to apprise all government regulatory authorities that CIBC continues to hide the truth from the world. CIBC has failed to publish the truth about the $1.5 Billion USD lien that had been recorded in several united States. CIBC is in deep trouble; recently, the criminal corporation agreed to an out of court settlement in the Supreme Court of the United States to pay ENRON victims approximately $3 Billion USD. They were also engaged in many shady deals like the recently published sub-prime mortgage scandal that took another $1.4 Billion CDN hit against their empty treasury. This corporation is totally insolvent, they only exist because the Canadian judiciary a mere facade for the CANADIAN (CRIMINAL) IMPERIAL (meaning they are owned by the emperors - the banksters) BANK OF COMMERCE gives this criminal organization the license to commit crimes in public - in open court. This Public Notice is also designed to tighten the screws that are now jammed tightly against this criminal corporation. They must not be allowed to continue malicious prosecution of Sovereign Trust members by CIBC such as the ones carried out and still being conducted by their criminal lawyers, Barbara K.H. Damm of Toronto and George H. Richard of Surrey, B.C.; both of these lawyers are recorded as Judgment Debtors in the official Public Notice. These individuals are jointly and severally responsible for causing this massive debt against themselves and CIBC for their open and blatant demonstration of lawlessness and total regard for honesty, integrity and morality of the individuals or "persons" who hide behind their BAR licenses that gave them open permission to destroy the lives of many people, mostly "Canadians" just so they can collect through false claims and false judgments backed by no evidence other than badly smudged, barely readable documents that have been photocopied multiple times and which source cannot be identified. The individuals named in the Amended Certificate of Debt, especially the lawyers named herein are all guilty of multiple counts of fraud against all Sovereign Trust members who were maliciously prosecuted with the open participation and complicity of various judges who signed various default judgments against our members in their Kangaroo Courts without demanding any valid or verifiable evidence from CIBC and its lawyers. These Kangaroo Court Proceedings are all recorded and transcripts are available to all who would like to search out the real truth for themselves. These public records are recorded evidence of all the fraudulent and corrupt activities being done within our so-called justice system (more accurately – the injustice system).This is not a standoff, nor a stalemate, Sovereign Trust is winning, well-capitalized by the now Collateralized Debt Obligation (CDO) now in a safe-keeping account held by Sovereign Trust. Sovereign Trust is also backed by $500 Million USD note drawn against the U.S. Treasury. Sovereign Trust now has enough capital to buy out a whole bunch of shares and practically take over CIBC for good. Although this may sound very tempting, Sovereign Trust is not interested in investing its capital in a criminal, oppressive and corrupt organization such as CIBC. We would rather invest in our own banks that are outside the jurisdiction of the criminal mafia that is running CIBC. This bank recently reported a $1.4 Billion CDN loss. Could that loss have anything to do with the public debt CIBC now owes Sovereign Trust? Or are there more losses CIBC have not reported at all? Why would anyone buy any of their plummeting shares? The $5.2 Million USD checks that have been distributed to various Sovereign Trust members and who deposited these checks to various CIBC accounts held by them will now be replaced by checks from Sovereign Trust's insurance provider, Ponderosa Holdings once the total amount of checks (estimated to be more than $3.1 Million USD) are accounted for. All Sovereign Trust checks certified by Sovereign Trust are insured for 10 times the amount of the face value of each check. This insurance settlement will be distributed to all Sovereign Trust members very soon. Once the checks are received and honored by Ponderosa, the insurance company will commence court action against CIBC and their lawyers for various fraud, conversion, theft, breach of trust, breach of fiduciary duties and many more other serious charges against all the Judgment Debtors named herein.Ponderosa will endeavor to create more judgments against CIBC for compensatory and punitive damages in Canadian and US. Courts. Sovereign Trust will proceed with Notarial Protest against CIBC to obtain its own administrative judgment on behalf of Sovereign Trust members.We don’t need their courts, a Public Notice that is based on truth is outside the jurisdiction of their illegal courts is therefore proof that exposing these criminals to the public is the only way to obtain proper Public Judgments against them. As the Sovereign said: those who do not have the truth hates the light. CIBC and its band of thieves can no longer hide behind their courts and man-made laws. This Public Notice is now irrevocable, non-appealable and therefore without recourse. Trusting in the Sovereign,John R. Dempsey

Trustee, Sovereign Trust

Amended Certificate of Debt

Public Notice

Strategic Implications of the Landmark (Kesler) Kansas Supreme Court Decision

See entire decision here > kansas-supreme-court-sets-precedent-key-decision-confirming-livinglies-strategies

See also Arkansas Supreme Court stating the same principles and citing to Kansas: arkansas-supreme-court-denies-mers-legal-standing

Annotations: See this list of cases cited by pretender lenders: Lender’s Cases

mers-getting-the-grilling-it-deserves

kansas-s-ct-decision-annotation-2-reversing-default

kansas-waking-up-to-discover-the-mortgage-market-was-a-giant-criminal-enterprise

What does this decision mean? It means that there are several direct strategic moves that are suggested both by the tactics of the pretender lenders and the Justices in Kansas who are not known for their activist liberal philosophy. Most persuasive about thidecision is that it was NOT a case of “Bank” or “Lender” versus Borrower. It is a case of one pretender lender against another. So we don’t have an ideological argument about whether the court was leaning toward the poor borrower/victims of this mess versus the financial institutions.

This decision was based upon simple application of basic black letter law that has been in effect for centuries.

MERS and the other nominee tactics employed in securitization of home loans is properly described as an illegal, improper scheme that causes title problems because it introduces parties into the property records of a county who have no interest in the loan, obligation, note or mortgage, no rights to enforce them, and leaves out the parties who will ultimately claim to possess enforcement rights.

MERS and the whole nominee model serve as the conduit for information about behind the scenes transactions purporting to transfer interests in real property without compliance with local law requiring recordation of those interests. It means that the security interest is not perfected.

BANKRUPTCY LAWYERS BEWARE: Those schedules showing the property encumbered by a secured mortgage and note might be wrong. One day some lawyer is going to put on a commercial asking if people have filed bankruptcy in recent years and lost their house because the house was admitted to be a secured asset when in fact it was not. It is a legal malpractice field day.

TITLE INSURERS BEWARE: Those title policies you issued where the mortgagee or beneficiary was shown as MERS or some other similar nominee might well call upon you to compensate the homeowner for loss of the property to a pretender lender who did not have any interest in the mortgage. The moment the closing was done, with full knowledge by the title company, there was a cloud on title. Either the title carrier is going to fund the correction or they are going to fund the compensation.

TRIAL JUDGES BEWARE: YOUR ASSUMPTIONS REGARDING THESE FORECLOSURES IS WRONG. As appellate courts review the basics of property law and apply those principles to securitized loans on residential real property, there will be no room for affirming your decisions unless the appellant makes procedural errors. You have already validated hundreds if not thousands of illegal, fraudulent and improperly cast foreclosures, both judicial and non-judicial. It is only Judges like Boyco in Ohio, Shack in New York, Burford in California and others who will be heralded as the ones who understood the basics of property law. The rest of the Judges will be castigated for having applied personal bias against the basic requirements of black letter law.

Landmark vs Kesler stands for the following propositions, some of which are missed because people are looking for silver bullets rather than the entire rationale of the decision:

  1. MERS is and was a straw man that has no rights, is not a real party, and cannot assert any claims, constitutional or otherwise.
  2. Setting Aside a Default: It CAN be done and the court must consider evidence outside the pleadings. “It is appropriate–and probably necessary–for a trial court to consider evidence beyond the bare pleadings to determine whether it should set aside a default judgment.”
  3. Failure to record prevents a party from asserting enforcement rights under any document purporting to establish an interest in real estate.
  4. Motion to Distribute Surplus is an effective tool (granted in the Kansas case) by which borrowers can attack a foreclosure even after the judgment has been entered and the sale has occurred. [What most people fail to realize because it is normally absurd to assume it, is that substantial profits were made on every mortgage --- particularly those that were declared in default. If you carefully build your case around the single transaction theory, then all the undisclosed profits, fees, rebates and kickbacks stemming from payments to people who performed no service in originating the loan are recoverable and probable susceptible to the recovery of treble damages. Thus payments under credit default swaps that bought out polls 30 times over are recoverable pro rata to each borrower]

The Credit Card Scam
 Tactics that would make
a mafia loan shark blush
 Great Video - Banks Engaged In Loan Shark Practices 
Please note that Sovereign Trust is not involved in any credit card scams like these. 

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