FedUpUSA

Archive for February 15th, 2011

Well what do we have here?

A. FOR ANY BENEFICIARY WHO IS NOT THE ORIGINATING BENEFICIARY ON THE DEED OF TRUST, THE BENEFICIARY SHALL RECORD A SUMMARY DOCUMENT REGARDING THE BENEFICIARY’S LEGAL INTEREST IN THE DEED OF TRUST THAT CONTAINS THE FOLLOWING INFORMATION IN CHRONOLOGICAL ORDER:

THE FULL NAME AND ADDRESS OF RECORD OF EVERY PRIOR BENEFICIARY ON THE DEED OF TRUST.

THE DATE, RECORDATION NUMBER OR OTHER UNIQUE DESIGNATION OF THE INSTRUMENT, AND A DESCRIPTION OF THE INSTRUMENT THAT CONVEYED THE INTEREST OF EACH BENEFICIARY.

THE SUMMARY DOCUMENT PRESCRIBED BY THIS SECTION SHALL BE RECORDED AT THE SAME TIME AND PLACE THAT THE NOTICE OF TRUSTEE’S SALE IS RECORDED PURSUANT TO SECTION 33-808 AND A COPY OF THE SUMMARY DOCUMENT SHALL BE ATTACHED TO ANY NOTICE OF TRUSTEE’S SALE THAT IS REQUIRED TO BE PROVIDED AS PRESCRIBED IN SECTION 33-809.

C. FAILURE TO PROPERLY RECORD THE SUMMARY DOCUMENT THAT DEMONSTRATES EVIDENCE OF TITLE FOR THE FORECLOSING BENEFICIARY AS OF THE DATE OF THE TRUSTEE’S SALE AS PRESCRIBED BY THIS SECTION RESULTS IN A VOIDABLE SALE.

D. ANY PERSON WITH AN INTEREST IN THE TRUST PROPERTY MAY FILE AN ACTION TO VOID THE TRUSTEE’S SALE FOR FAILURE TO COMPLY WITH THIS SECTION AND IS ENTITLED TO AN AWARD OF ATTORNEY FEES AS WELL AS DAMAGES AS OTHERWISE PROVIDED BY LAW IF THE PERSON SUBSTANTIALLY PREVAILS, INCLUDING AN AWARD OF ATTORNEY FEES FOR ANY INJUNCTION OR OTHER PROVISIONAL REMEDIES RELATED TO THE CLAIM.

It’s about damn time.

That ought to put an immediate and complete stop to the crap that banks continually run about having “substitute” documents or having an assignment when they really don’t.  Note that this bill (which apparently was just voted out of committee 4-0 in the Senate, and which has a companion in The House) will put an absolute stop to any foreclosure where the originator of the note did not transfer it properly (that would be, I’d argue, most of them) and it will render void upon suit by any person who is foreclosed upon and discovers that the note was never properly conveyed.

Ex-post-facto “cleanup” BS games will be rendered impossible by this bill.

The bottom line is this: Either the original issue of that mortgage and its subsequent securitization went through all previously-required assignments and you can prove it or your ability to convey a title via Trustee Sale is gone.

Awwww those poor widdle banksters that cheated on the rules…. looks like Arizona has had enough of their games and is going to body-slam them all in favor of their citizens.  BRAVO!

Now to get this introduced and passed in all 50 states….. a refreshing instance of legislation that actually both defends property rights and fits on one page!

Hattip Halfbrite

The Market-Ticker

SB 1259 – Introduced Version – Arizona State Legislature via MyGov365.com

The President ordered the cabinet to cut $100 million from the $3.5 trillion federal budget.

I’m so impressed by this sacrifice that I have decided to do the same thing with my personal budget.  I spend about $2000 a month on groceries, household expenses, medicine, utilities, etc, but it’s time to get out the budget cutting axe, go through my expenses, and cut back.

I’m going to cut my spending at exactly the same ratio, 1/35,000 of my total budget.  After doing the math, it looks like instead of spending $2000 a month; I’m going to have to cut that number by six cents. 

Yes, I’m going to have to get by with $1999.94, but that’s what sacrifice is all about.  I’ll just have to do without some things, that are, frankly, luxuries. 

(Did the president actually think no one would do the math?)

John Q. Taxpayer

People psychologically are programmed to believe in financial realities that benefit their own cause even if they have no merit in empirical data.  Many also forget that banks, especially the investment kind have a notorious track record of running amok when allowed to.  The FDIC and US banking is a perfect example of a system built on nothing more than faith.  Currently the FDIC insures individual deposit accounts up to $250,000.  Given that most average Americans only have $2,000 saved up this is rarely an issue.  However, FDIC insured banks have $5.4 trillion through insured deposits yet have a deposit insurance fund (DIF) that is in the negative to the tune of $8 billion.  Is this a Ponzi scheme you ask?  Not exactly but it shows that the entire financial edifice that we call US banking is built on largely a foundation of sand being held together by pure psychological confidence.  Just look at this chart below; as insured deposits grow the insurance fund actually dwindles:

Source: FDIC

How is this even possible you may ask?  Well at a very basic level we have fractional reserve banking.  In the US banks have a 12 to 1 leverage ratio.  This number is derived by assets divided by net worth.  Yet banks have the benefit of calling over priced real estate loans “assets” even though all of us fully understand that much of what they have on the books is cooked at bubble level prices.  Banks are hoping the public is naïve enough to allow this game to go on for long enough where time and the Federal Reserve can inflate away the debt at the expense of the middle class.  Inflation is not the answer and we have many ruined economies throughout the old chapters of history to serve as testimony.  The FDIC backs more bread and butter banks but the top investment banks that were the largest beneficiaries of taxpayer bailouts have some of the most outrageous leverage:

Only two of the five now stand (Goldman Sachs and Morgan Stanley) as standalone investment banks.  Merrill Lynch is now part of Bank of America while Bear Stearns and Lehman Brothers are both gone.  Yet we are not better off because what has occurred is the too big to fail have become even bigger.  Take for example the number of FDIC banks:

In 1992 over 12,000 banks and savings institutions were backed by the FDIC.  Today that number is slightly above 7,700 yet total assets are even larger on a percentage basis.  More and more banks fail but where tiny regional banks go down another too big to fail bank takes over and sets up shop.  You’ve probably seen this in your own neighborhood.  These are the same banks that created most of the toxic debt that infected the financial system to begin with.  Now we are allowing them to setup shop all around the country.  The FDIC is backing over $5 trillion in deposits purely on faith.  Let us assume there is a bank run.  Who will be there to bailout the FDIC?  The US Treasury and Federal Reserve but since the nation is in the hole to the tune of $14 trillion in national debt this would only dilute the currency even further.  In the end you would get paid back but with deflated dollars.  This is why inflation is never really a solid option out of economic malaise.  Otherwise we should just print and send $1 million to each American household.

Debt problems continue to plague the economy:

Source:  Federal Reserve

This is stunning data.  Nearly 14 percent of all credit card accounts are 90 days or more delinquent.  Given that there is $850 billion in this market alone, this is cause for concern.  The next biggest delinquent category by percent of all loans isn’t mortgages but student loan debt.  We’ve discussed the higher education bubble and here you are seeing the end results.  Ultimately what the above shows is a country that fueled its last decade largely on massive amounts of debt.  That debt is now due and many people are unable to pay.  Keep in mind what this signifies.  We aren’t talking about paying off the entire balance.  You have people unable to make the $200 payment on their $7,000 credit card debt.  Or you have people unable to pay the $1,500 mortgage on their $175,000 home.  This debt is actually an asset to the banking system.  Does the above chart make you feel confident that the value of banking assets is increasing overall?

Look at the total debt outstanding:

Source:  Federal Reserve

Currently US households have $11.4 trillion in debt outstanding.  This is off from the $12.5 trillion peak in Q3 of 2008.  The big difference is also the amount of equity Americans have in their home.  That $11.4 trillion in debt seems more painful when overall US housing has fallen by over 30 percent and has chopped into the biggest asset of average Americans.  Home prices are down by 30 percent while overall debt levels are down by 8.8 percent.  That is simply unsustainable and that is why banks keep failing on a weekly basis.  But the banks that have the most fantasy in their balance sheets, the too big to fail continue to eat away at taxpayer money through the hidden cost of quantitative easing and the destruction of the US dollar.  These aren’t speculative notions but just look at where your financial life is today versus where it was over a decade ago.

As people struggle with extremely high unemployment many are jumping into the higher education bubble and getting into massive debt:

Many of these graduates will have no savings with FDIC insured banks but will owe the government and banks money they don’t have.  How will they pay this off?  The high delinquency rate is telling us they can’t.  In the end you need a sustainable economy but right now the FDIC is merely the Wizard of Oz.  We are pretending that over $5 trillion in deposits is actually backed by some “lock box” fund somewhere.  It isn’t.  It is simply faith in a system that has largely failed the middle class.  As we see protests around the world when will Americans protest against this banking system that has led them down this path of debt servitude?  Is robbing your financial future or your kid’s financial future not enough to call for serious reforms in the system?  Let us just keep pretending that the $13 trillion in “assets” at FDIC insured institutions is really worth that and keep going on with our business.  Just like everyone believed real estate was actually worth what it was at the peak just because it inflated balance sheets all around the country.

My Budget 360

In this scenario, the wheels fall off the debt-fueled global “recovery” and assets bottom in 2014.

Here is one possible scenario for the next five years. Why do I consider this somewhat more likely than other possible scenarios? Here some undercurrents which may be generally under-appreciated:

1. There is a difference between speculative and organic demand. The two are of course related, as industrial consumers of resources must hedge against rising prices using the same instruments as speculators–futures contracts, etc.

2. Follow the credit, not just the money. It’s not just the U.S. economy which is dependent on cheap, abundant credit–the same can be said of China and the European Union to some degree.

Just because Chinese buyers put 50% down on their fourth flat doesn’t mean they don’t need credit for the other 50%. Chinese developers are heavily dependent on credit issued or backed by the Central Governments banks and proxies.

Credit is not cash, and creating credit is not the same as printing cash. Shoveling $1 trillion in zero-interest credit into the banking system does not necessarily mean that $1 trillion flows into the real economy–that can only happen if someone or some entity borrows the credit.

This is why some claim that hyperinflation has never occurred in a credit-based system; it can only arise in a monetary system in which cash itself is printed (i.e. Zimbabwe et al.)

I am not making any such broad claim, but to identify the two as identical seems to me to be a profound confusion.

This distinction plays out in a number of ways. If the Fed had actually printed $1 trillion in cash and dropped it from helicopters, then those collecting the cash on the ground might have spent it, creating more organic demand for goods and services.

If the Fed creates credit and loans it to banks at zero-interest rate, the credit only flows into the real economy if somebody borrows it.

Without borrowers, the “money” just sits in reserves, where it does not spark inflationary organic demand for resources, goods or services.

If someone borrows the “money” to refinance existing debt, the only money that flows into the real economy is the difference between their original debt servicing costs and their new debt servicing costs, presuming the new costs are lower than the original. (Not always the case if said borrower had an interest-only “teaser rate” mortgage that he/she is now rolling into a mortgage with principal payments and a market rate interest payment.)

Or a large speculator (trading desk, hedge fund, etc.) could borrow the credit-money to speculate in commodities, driving prices up on the widespread expectation of higher costs in the future. In this case, the credit-money does influence the real world economy by driving commodity prices above levels set by organic demand.

But speculative “hot money” is not organic demand; it flees or is lost if trends suddenly reverse.

Since commodities such as oil are priced on the margins, this matters. A sudden decline in oil from $86/barrel to $76/barrel would trigger an exodus from speculative long positions, reinforcing that decline in a positive feedback loop.

3. Hoarding is a special flavor of organic demand. Like speculative demand, it vanishes once the fear of ever-higher prices evaporates.

4. The global GDP is around $60 trillion; the Federal Reserve has “printed” $2 trillion in the past three years. Placed in the proper context, the Fed’s printing and asset purchases are large enough to influence the U.S. stock and bond markets, but they simply aren’t significant enough or focused enough to enslave the entire global markets in stocks, bonds, precious metals and commodities.

Other players are busy printing and issuing zero-interest credit, too, of course, but we should be wary of sweeping generalizations about the deterministic nature of these central bank campaigns.

As further context, consider that the Fed’s vast interventions have distributed some $2 trillion into the financial sector; meanwhile, U.S. homeowners saw their net equity decline by some $6 trillion.

OK, on to the scenario which will get me in all sorts of trouble:

Here is the sequence of events I consider rather likely:

Q3/Q4 2011-2012: extend and pretend fails. The wheels fall off the global “recovery,” the emerging market equity bubbles, oil, China’s equities and its property bubble, and most if not all commodities. Gold and silver swoon as per late 2008 as raising cash become paramount. Oil retraces to the $40/barrel level, and then drops further as exporters ramp up their exports to generate desperately needed cash.

Interest rates rise sharply, risk assets tank, borrowing dries up, housing prices “slip” to new lows (the stick-slip phenomenon), and the hated/loathed U.S. dollar confounds almost everyone by breaking out of technical resistance levels.

Civil disorder spreads along with recession and lower energy prices, which devastate oil exporters’ primary source of government revenues.

With better grain harvests stemming from improved weather, declining meat consumption in 2012 due to recession and the implosion of the market for corn ethanol, grain prices plummet, wiping out all the speculators who reckoned 2010 had set the trend for the decade.

All of this starts slowly in Q3 2011 but gathers momentum in 2012.

Unfortunately for central banks, all their printing and credit creation is analogous to insulin resistance: without borrowers and solvent banks and consumers, their frantic efforts to “stimulate” their economies with additional liquidity come to naught.

The Central State’s other gambit, monumental fiscal “stimulus,” runs into the brick wall of rapidly rising interest payments and a political revulsion triggered by the realization that only the financial and political Elites actually benefitted from the trillions squandered in the 2008-2011 orgy of Central State “stimulus” and backstops.

With asset prices collapsing in a phase shift, the equity needed to float new loans vanishes; with risks rising, the market for junk bonds and other risk-laden debt also disappears.

All those who clung on through the “recovery,” hoping to made whole, are wiped out. Their bankruptcies trigger a new wave of selling and writedowns.

2013-2014: Re-set and reckoning. Widespread political and financial turmoil leads to a few central choices:

1. Repudiation of the Neoliberal Central State/Financial Oligarchy strategy of 2008-2011 which focused on preserving the insolvent (but politically dominant) banking and Wall Street financial sectors and transferring their private losses to public entities/taxpayers.

2. Replacement of incompetent, venal, exploitative dictatorships with some new flavor or autocracy, oligarchy, theocracy or dictatorship, most of which will prove to be equally incompetent, venal and exploitative–but shorter-lived.

3. Experimentation with new models of governance, “growth” and credit/debt. Some modest recognition of the profound failures in the “extend and pretend” status quo generates a sense that these catastrophically destructive policies have been recognized as such and corrected.

These years will see the near-term bottom in housing, equities, and other assets. Those few who preserved cash during the meltdown are in a position to snap up assets on the cheap. Those who depended on credit/debit find borrowing is now difficult and dear. Those who “bottom-fished” real estate in 2011 are wiped out, along with those who bet that commodities were heading straight to the moon.

2015-2016: false dawn. Things get better; prices stabilize, assets and commodities start rising in price and a sense of hope replaces widespread gloom and distemper.

The real crisis has been pushed forward to 2020-2022. Nonetheless, 2015-2016 will offer those with cash tremendous profit opportunities.

Of Two Minds

A curious thing happened to a middle-aged Frenchman in Monte Carlo last year. He had unexpectedly received a year-end bonus of 10,000 from his employer, and decided to visit Le Grand Casino for a weekend, where he could relax and gamble with his new found wealth. Since his wife and daughters were visiting his stepmother that weekend, he would be able to focus entirely on making some money. His first night was judiciously spent at the Roulette tables, where his sharp instincts and calculated patience presumably allowed him to double his allotted wealth in just five hours. It was an excellent night for the man, who was now 10,000 richer, and he spent the next afternoon lounging in a cabana at the hotel’s pool.

That night, the man locked away the initial 10,000 in his room’s safe and took the rest back down to the casino floor, where he quickly locked up a seat at his favorite Roulette table from the night before. His playing strategy remained the same as always – place a minimum bet on two out of three columns, switching one column each time he won a bet, and sitting out one roll each time he lost - no deviations from the strategy whatsoever. After a series of wild fluctuations in his bankroll, the man was left with only two more bets, and he decided to place them both on black. The tiny steel ball deftly rolled around the wheel for several revolutions and tensely bounced between a few numbered slots before finally choosing to settle on number 21 - red.

The man quietly finished his glass of red wine, shuffled up to his room and lay awake in bed. He couldn’t help feeling extremely frustrated about the events of that evening. Frustrated with the insidious game of roulette, with his own careless betting decisions, with his “bad luck”, with the other players who had won, with the man spinning the little steel ball, with the tiny ball itself. He kept replaying the spins in his mind, fantasizing about the money he would still have in his pocket if he had just made a few different decisions.

What especially haunted him was the would-be expression on his wife’s face when he unexpectedly brought home 20,000. The 10,000 bonus would surely lift her into a state of pleasant surprise, but the man speculated that, if he had managed to double that bonus in just two short days at the casino, her pleasant surprise would be magnified ten-fold into a state of blushing pride .

On his journey back home the next day, the man began to realize just how strange his lingering feelings from the night before were. After all, he was exactly even from gambling at the end of his trip, and had actually been comped for a night’s stay at the hotel and a few meals. He had even expected to lose a bit of money going into the trip, since Roulette laid players some of the worst odds in the Casino. The man reflected on the fact that his brief excitement from winning 10,000 on the first night had paled in comparison to his prolonged dismay from losing that same 10,000 on the second night. It was indeed a curious psychology that continued to puzzle the curious man, so he decided to do some Internet research when he arrived home. Hopefully, he thought, a new and more fundamental understanding of this psychology would finally put his mind at ease.

It didn’t take too many Google searches before the man came across the concept of “myopic loss aversion“, which explains that people are significantly more likely to experience pain or displeasure from losing a monetary amount than excitement or pleasure from winning that same amount, especially when they frequently evaluate financial outcomes. This disproportional dynamic is obviously powerful when it involves money that one can barely afford to lose, but it also forcefully applies to losses that may be small relative to an individual’s bankroll. Even the multi-millionaire corporate executive who drops fifty grand gambling at a Vegas poker table will be beating himself up soon after, despite the fact that he will most likely make  multiples of that by the end of the year (or at least he believes that he will).

Many of us may be familiar with the painful/shameful process of losing significant sums of money invested in the “wrong” place at the “wrong” time, but it is much more difficult to imagine the negative reactions produced when an entire economy of millions is serving up losses which, in a few short years, will threaten to wipe out all of the financial gains accumulated over decades. After the most potent “winning streak” in human history, the majority of American society has been blindsided by equally potent losses, which continue to mount and show no signs of abatement:

• It is estimated by Zillow that average home prices in the US have declined ~27% from their peak in June 2007, effectively destroying $9.8 trillion  worth of homeowner’s equity (in an economy worth ~$14 trillion). [1]
• About 15.7 million homeowners have negative home equity (owe more on home than it is worth), representing a whopping 27% of all mortgaged single-family homes. Joseph Stiglitz infers that these trends will lead to a total of about 9 million people losing their homes through foreclosure between 2008-2011. [2].
• According to officially under-stated statistics, the unemployment rate jumped from 5% in 2008 to ~9.6% in 2011, and the U-6 number puts it at ~16.5%. [3]. The official rate is only that “low” because millions of people have given up looking for jobs over the past few years (magically removing them from the official labor force), and millions of other people with part-time, low-paying jobs are counted as employed (26% of new private-sector hires are temporary [4]).
• Between 2006 and mid-2008, Americans had lost about 22% of total retirement assets or $2.3 trillion, and $2.5 trillion in savings and investment assets. [5]. Although a decent amount of this value has been recovered during 2009-10, it has mostly gone to a significantly smaller percentage of people who have held on to such assets and has only been achieved on the backs of taxpayers, who now owe interest on an additional $4 trillion+ in public debt (plus a few more trillion if we include the GSEs). [6]. When the markets crash again, that public debt will be money completely wasted for a large majority of Americans, if it is not considered to be already.
• Credit card defaults hit a near-record rate of 11.4% in 2010, more than double the rate in 2007, and the average late fee had risen almost 10% from $25.90 in 2008 to $28.19. [7].
• Public employees face at least a $2.5 trillion state pension shortfall mostly accumulated since 2008, and the gap can only be made up through drastic cuts to pension benefits, layoffs and cuts to public services for all other citizens. [8].
• Profits of most small businesses (unincorporated organizations such as partnerships and sole proprietorships) have fallen 5% in the last two years. [9], [10]. These businesses employ over half of all private sector employees and have created 64% of net new jobs over the last 15 years. [11].

There are many other losses that have befallen the American people over the last few years on top of those listed above, and recently they have also seen the costs of necessities increase. The real interest burden of private and public debt continues to weigh heavily on businesses, consumers, patients, students and civil servants. State welfare programs such as unemployment insurance, food stamps, Section 8 and Medicaid provide temporary crutches to dull the searing pain, but it is clear that these programs only continue to exist on recklessly borrowed time and will be selectively restricted to the American people in short order. The federal retirement program of Social Security, on which many retired Americans have come to rely on, is at the brink of insolvency (the difference between outlays and receipts for the SSA in 2010 was $76 billion [12]), and Medicare isn’t looking too much better.

American politicians and officials are promising their constituents that this value lost will be recovered, but most of them remember too many broken promises to find any comfort in hollow words. When structural shortages of oil imports become a factor, Americans will have systematically lost not only their financial investments, but their entire way of life and lofty perspectives of reality. Sooner rather than later, we will be forced to fully experience the penetrating anguish and regret associated with unprecedented loss, as the tiny steel ball ceases to bounce around and settles in its pre-determined slot. It is at this time which we will realize that there is only a thinly-veiled political fiction separating us from the furiously desperate protesters in the crowded streets of the Middle East.

The Automatic Earth

Merscorp Inc., operator of the electronic-registration system that contains about half of all U.S. home mortgages, has no right to transfer the mortgages under its membership rules, a judge said.

U.S. Bankruptcy Judge Robert E. Grossman in Central Islip, New York, in a decision he said he knew would have a “significant impact,” wrote that the membership rules of the company’s Mortgage Electronic Registration Systems, or MERS, don’t make it an agent of the banks that own the mortgages.

“MERS’s theory that it can act as a ‘common agent’ for undisclosed principals is not supported by the law,” Grossman wrote in a Feb. 10 opinion. “MERS did not have authority, as ‘nominee’ or agent, to assign the mortgage absent a showing that it was given specific written directions by its principal.”

Merscorp was created in 1995 to improve servicing after county offices couldn’t deal with the flood of mortgage transfers, Karmela Lejarde, a spokeswoman for MERS, said in an interview last year. The company tracks servicing rights and ownership interests in mortgage loans on its electronic registry, allowing banks to buy and sell the loans without having to record the transfer with the county. It played a major role in Wall Street’s ability to quickly bundle mortgages together in securitized trusts.

MERS was still reviewing Grossman’s decision and didn’t have an immediate comment, Lejarde said in an e-mail Feb. 11. Lejarde didn’t immediately respond to an e-mail seeking comment today.

Proper Status

“‘Don’t come around here no more,’ is basically the message to MERS,” said April Charney, a senior attorney with Jacksonville Area Legal Aid in Jacksonville, Florida. “The judge basically deconstructed MERS and said there’s no possible way in any case you can come in and show you have this appropriate proper status to transfer the note.”

“MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage-recording process,” Grossman wrote. “The court does not accept the argument that because MERS may be involved with 50 percent of all residential mortgages in the country, that is reason enough for this court to turn a blind eye to the fact that this process does not comply with the law.”

Automatic Shield

In the case Grossman ruled on, Credit Suisse Group AG’s Select Portfolio Servicing, a mortgage servicer, sought to bypass the automatic shield against legal claims triggered by Ferrel L. Agard’s filing for personal bankruptcy in September.

Select Portfolio wanted permission to foreclose on Agard’s home in Westbury, New York, on behalf of U.S. Bancorp’s U.S. Bank unit, the trustee for the mortgage-backed trust the home loan was in. The house is worth about $350,000 and the mortgage amount was $536,921, according to the decision.

Grossman ruled in favor of Select Portfolio because he couldn’t overrule a November 2008 foreclosure judgment the servicer won in state court, he said. Without that state-court ruling, Select Portfolio wouldn’t have had the right to bring its motion, Grossman said.

He then addressed whether a mortgage transfer by MERS is valid, because “MERS’s role in the ownership and transfer of real-property notes and mortgages is at issue in dozens of cases before this court,” including those where “there have been no prior dispositive state-court decisions,” he wrote.

Original Lender

Select Portfolio argued in part that MERS’s February 2008 assignment of the mortgage to U.S. Bank was valid because Agard agreed that MERS would hold title to it for the original lender, Bank of America Corp.’s First Franklin, and for whichever banks it was further assigned to. First Franklin transferred the promissory note the mortgage secured to Lehman Brothers Holdings Inc.’s Aurora Bank and Aurora to U.S. Bank, according to the decision.

“An adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders which do business with MERS throughout the United States,” Grossman wrote. “It is up to the legislative branch, if it chooses, to amend the current statutes to confer upon MERS the requisite authority to assign mortgages under its current business practices.”

MERS intervened in the case and argued that Agard’s mortgage, the terms of its membership agreement and New York state law gave it the authority to assign the mortgage. MERS says it holds title to mortgages for its members as both “nominee” and “mortgagee of record.”

Select Portfolio

Grossman said Select Portfolio had to show that U.S. Bank owned both the note and the mortgage, and there was no evidence that it held the note. The judge disagreed with Select Portfolio’s argument that U.S. Bank held the note because the note “follows” the mortgage, which it said U.S. Bank owned.

“By MERS’s own account, the note in this case was transferred among its members, while the mortgage remained in MERS’s name,” Grossman wrote. “MERS admits that the very foundation of its business model as described herein requires that the note and mortgage travel on divergent paths.”

The judge said that the membership agreement wasn’t enough to assign the mortgage and that to do so the lender would have to give power of attorney or similar authority to MERS.

MERS’s membership rules don’t create “an agency or nominee relationship” and don’t clearly grant MERS authority to take any action with respect to mortgages, including transferring them, Grossman wrote. Because the interests at issue concern “real property” — land and buildings — under state law, any transfer has to be in writing, which isn’t done under the MERS system, he said.

‘Nominee’ Status

“Without more, this court finds that MERS’s ‘nominee’ status and the rights bestowed upon MERS within the mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage,” the judge wrote. “MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best.”

Grossman said parties coming to him to seek to lift the automatic ban on legal claims in cases involving MERS will have to show they own both the mortgage and the note.

The case is In re Agard, 10-77338, U.S. Bankruptcy Court, Eastern District of New York Central Islip).

To contact the reporter on this story: Thom Weidlich in Brooklyn, New York, federal court at tweidlich@bloomberg.net.

To contact the editor responsible for this story: John Pickering at jpickering@bloomberg.net.

Bloomberg