Posted on August 18, 2009 by livinglies
From Kevin A McKenna. A very good explanation about MERS and nominees. Note especially the reference to creating two entities to exercise collection and foreclosure instead of one thus reinforcing the argument of financial double jeopardy. The MERS deed would therefore be void, as he says. Thus there would be no security, probably no note and maybe no obligation either if the “Lender” was paid in full at closing by a third party in the securitization chain or if the derivative products were sold and insured.
Note also this Quote from Kevin: Those provisions are strictly construed against MERS putative conveyance since the statutory provisions are in derogation of common law.
Under R.I. Law it is my opinion that any purported action in the name of MERS is a break in the chain of title and is void.
The customized form of Mortgage deed utilized by the Mortgage Electronic Registrations Systems Inc., (MERS), Paragraph C and the grantee clause in particular, is not entitled to any of the R.I. statutory mortgagee protections provided in the provisions of Title 34 of the R.I. General Laws.
A “Nominee” “Mortgagee” is simply not entitled to the statutory benefits of Title 34. Those provisions are strictly construed against MERS putative conveyance since the statutory provisions are in derogation of common law. For example, MERS mortgagee deeds have two entities exercising the same statutory foreclosure powers. R.I. law only protects the actual “holders” of the mortgage deed or their statutory “assigns ”, not “nominees” which nominees only have a role with stocks and bonds. MERS argues, in a futile exercise of nominalism, that splitting the term “mortgagee” from the “lender” has a benefit to itself. MERS mortgage deeds are defective because the R.I. Statutory protections run to functional powers of the “holders” of the mortgage and of the mortgage notes, not to self defined “nominees”.
Nominees are not eligible to hold future interests in property without statutory assignments. Only R.I. statutory assignees can exercise the functional abilities necessary to gain control of the five (5) statutory elements required to provide a clean title at the end of the process. R.I. Statutory protections run to the “holders” of the mortgages, not their nominees. The provisions of R.I.G.L.§34-11-12 (4) on mortgage deeds, R.I.G.L.§ 34-11-12 (5) on mortgage releases, R.I.G.L.§ 34-11-12 (6) on form assignments, R.I.G.L.§ 34-11-12 (7) on foreclosure powers, and R.I.G.L.§ 34-11-12 (8) on sale powers ONLY protect the “holders” of the mortgage, not their putative “nominees”. . When MERS does not have an actual separate written and recorded conveyances from the actual holder of the mortgage to itself prior to MERS making a conveyance, the conveyance is void. MERS by its own description in paragraph C is not contractually able to perform the statutory functions of the “holder” of the mortgagee. Mortgage Electronic Registration System Incorporated, as a putative nominee, selected by the Mortgagor, usually lacks actual recorded authority from the Holder of the Mortgage by way of a recorded assignment (R.I.G.L.§ 34-11-12 (6)) or a recorded power of an attorney. Mortgage Electronic Registration System Incorporated can not be by its own definition by be a “holder” of the mortgage deed. Mortgage Electronic Registration System Incorporated did not own or possess or control the mortgage note which was necessary to enforce the mortgage deed. R.I.G.L§ 6A-3-301.