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john gault's Blog

Judge Slams MERS etal Head-On over Bogus MERS' Assignment
by john gault | 2011/06/09 |

The court was not amused upon learning the person who signed the "MERS" assignment was in fact an employee of a processing company, and was not an employee of MERS. This is the first time I've seen this particular issue addressed head-on in a case.

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Normally, I write my own articles. Attorney Lyn Syzmoniak has done a very good job with her analysis of this case and I doubt this writer could match it or do it better.   

"On September 30, 2010, U.S. Bankruptcy Judge Harry C. Dees, Jr., Northern District of Indiana, South Bend Division, confronted head-on the widespread practice of employees of mortgage servicing companies signing Mortgage Assignments with false job titles, in Koontz v. EverHome Mortgage and Mortgage Electronic Registration Systems, Inc., Case No. 09-30024, Proc. No. 10-3005. In this contested foreclosure, EverHome and MERS moved for summary judgment, while the plaintiff homeowners argued that there were genuine issues of material fact that precluded summary judgment. One such issue involved a Mortgage Assignment signed by Bethany Hood as Vice President of Mortgage Electronic Registration Systems, Inc. (“MERS”). (Regular readers of Fraud Digest will recognize that Bethany Hood is a clerical employee of Lender Processing Services who works in the Mendota Heights, MN office and who signs thousands of mortgage documents monthly using at least 20 different job titles.)

Here is what the Court said about this: “MERS, in its Answer to the plaintiff’s Complaint, admit(ted) that Bethany Hood is not an employee of MERS. (cite omitted). The debtor claimed that the document [assignment signed by Bethany Hood as a MERS officer] was fabricated and MERS has offered no other explanation, nor has it submitted properly authenticated documentation of an assignment. It appears to this Court that a fraudulent recorded Assignment of Mortgage might still be found today in the St. Joseph’s County Recorder’s Office, despite MERS’ knowledge of the false signature.

Indeed, MERS has completely sidestepped the fact that this Assignment was signed by someone representing herself to be a Vice President of MERS, and it has declined to explain why this false document was attached to the amended Proof of Claim… In the view of this court, the conduct of the EverHome defendants and the MERS defendant – reflecting a lack of transparency and determination not to provide information or documents until required – has burdened both the debtor and this Court…

On this case, the Creditors have been forced to admit that a non-employee signed the Assignment of Mortgage, representing herself to be a Vice President of MERS and other banks or mortgage companies held the Mortgage and or Note at issue… Having determined that genuine issues of material fact exist, the Court denies the Motions for Summary Judgment filed by the EverHome defendants and MERS….."

How many other Mortgage Assignments signed by individuals falsely claiming to be Vice Presidents of MERS have been filed since 2008? It is likely that the number is greater than ten million."

JG:  I note the judge also stated, ".... the debtor identified the bogus MERS' employee signing the documents and thus demonstrating the assignment's invalidity and fabrication." 

This decision also has an interesting discussion of the applicable rules regarding proofs of claims in bankruptcy cases.The court found the alleged creditor had not met its burden on that score. The court  pointed to the the lack of a chain of title as another genuine issue. MERS, as indicated, declined to answer regarding the bogus MERS' assignment. 

The homeowner was awarded fees. 

This decision will probably pop-up in an internet search for those who may want to read it in its entirety. I would think, however, that while it's good new for many of us, those who insure foreclosed properties these days based on these bogus assignments won't find much comfort in it.  It's a heck of a mess, isn't it? One to which none of us should have been exposed.




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