September 10, 2010 by Neil Garfield 

9.09.10 NY MERS NO AUTHORIY DISMISSED

MERS tried to Quiet Title. In so doing they paved the way for
millions of homeowners to sue MERS to quiet title. The net result is
that the encumbrance is invalid. That means the debt, the obligation,
MIGHT exist, but it is NOT secured by the home. I’d say I told you so,
but that would be immature. :)

All of that is important but Judge Jeffrey Arlen Spinner went a lot
further and made his mark on the issue of bogus affidavits that say
nothing but which are used by foreclosure mill attorneys who spout off
about what the affidavit says or what it proves. Judge Spinner flatly
says the affidavit would be insufficient even if MERS had an interest,
which it does not. He clearly states the law which is valid not only in
New York, but EVERY state and federal jurisidiction, but which has been
ignored by a majority of judges until now:

To establish a claim of lien by a lost mortgage there must be certain evidence (e.s.) demonstrating that the mortgage was properly executed with all the formalities required by law and proof of the contents
(e.s.) of such instrument. … Here Burnett’s affidavit simply states
that the original mortgage is not in Deutsch Bank’s files, and that he is advised (e.s.) that the title company is out of business. Burnett gives no specifics as to what efforts were made to locate the lost mortgage…. More importantly, there is no
affidavit from MLN by an individual with personal knowledge of the
facts that the complete file concerning this mortgage was transferred to
Deutsch Bank and that the copy of the mortgage submitted to the court
is an authentic copy of Torr’s Mortgage
.” (e.s.)

EDITOR’S NOTE: The importance of this decision and its
citations cannot be over-stated. Now we are getting down to the nub of
it. It isn’t enough for the  foreclosure lawyer to make empty
allegations contained nowhere in pleadings, affidavit or proof. The
foreclosure lawyer is seeking affirmative relief — enforcement of the
note and sale of the property. If he can’t plead the case in good faith
then he doesn’t belong in court. And if he does plead the case he must
prove it within the boundaries of ordinary rules of evidence. A
competent witness must exist who is wiling to testify under oath and who
actually appears to do so. They musts possess PERSONAL knowledge (not
what someone told them) of the facts about which they are going to
testify. Business records exceptions are very restrictive as they
prevent the other side from cross examining a live witness (a basic
constitutional right of due process).

  • “Trust me” is not a substitute for real evidence.
  • If they want to prove the obligation, they need evidence.
  • If they want to prove a default, they need evidence,
  • if they want to prove the note is evidence of the
    obligation, they must prove that assertion with evidence that the note
    is the whole deal (which is NEVER the case in a securitized loan).
  • If they want to prove a lost note they need evidence that
    the note was in existence, when it was in existence, how it came into
    existence, and what happened to it — not just say we had it, but now we
    don’t.
  • And watch out for those “original notes.” Many of them are
    fabricated using simple software and a color printer. If there are no
    impressions on the back of the page, even the note they present is
    probably NOT the original and is probably a fabrication printed off a
    laser or dot matrix printer. Close examination will show even a novice
    the truth of this statement.
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