What is Mortgage Electronic Registration Systems, Inc. (MERS) – www.mewrsinc.org? Is it a way to cheat your County or Municipality out of mortgage recording fees and mortgage tax? Are wealthy banks cheating our Counties out of resources that they need to provide services?

MERS is a beneficiary of many mortgages and a purported participant in many imperfect securitizations of Notes and Mortgages.

From 1998 until the financial crash in 2008-2009, over 60 million home loans were sold by originating lender banks to investment banks to be securitized in a complex series of billions of transactions. Securitization is the process whereby mortgage loans are turned into securities or bonds sold to investors by Wall Street and other firms.  The purpose is to provide a large supply of money to lenders for originating loans and to provide investments to bond holders that were expected to be relatively safe.  The procedure for selling of the loans was to create a situation whereby certain tax laws known as Real Estate Mortgage Investment Conduits Act (REMIC) were observed and whereby the Issuing Entities and the Lenders would be protected from going into bankruptcy.  In order to achieve the desired “bankruptcy remoteness” numerous “True Sales” of the loans had to occur in which loans were sold and transferred to the different parties to the securitization.  A “true Sale” of a loan would be a circumstance whereby one party owned the Note and then sold it to another party.  An offer would be made, accepted and compensation given to the seller in return for the Note.  The Notes would be transferred, the Mortgages assigned to buyers of the Note with an Assignment made every step of the way, and, further more each Note would be endorsed to the next party by the previous assignee of record.  Each REMIC Trust created by the investment banks, usually under New York Law, would be funded with tens of thousands of mortgage notes. In order to maintain their bankruptcy-protected status, REMICs had to have closing dates by which every mortgage note that was to be sold to the REMIC had to be “owned” by the REMIC.  Once the REMIC closed, it could accept no more mortgage notes under the terms of REMIC law, and it would begin selling securities backed by payments from homeowners on the notes it owned. How that particular mortgage loan ended up being transferred to a REMIC in the securitization process is governed by a contract known as a Pooling and Servicing Agreement (PSA).  The PSA is a Trust Agreement to be filed under penalty of perjury with the United States Securities and Exchange Commission (“SEC”) and which along with another document the Mortgage Loan Purchase Agreement (“MLPA”) is the operative securitization document created by the finance and securitization industry to memorialize securitization transactions.  THE PSA specifies the closing date by which the homeowner loan must be sold to the REMIC and described exactly how the homeowner’s note is to find the way from the original lender to the REMIC trust.  A typical PSA calls for a homeowner’s note to be transferred at least four times to different key parties before it comes to the possession of the REMIC trustee.  As part of the process, the banks almost always separate the mortgage note from the mortgage.  Under the common law, the owner of the note had the right to make payments on the note and the owner of the mortgage had the right to foreclose on the homeowner if the homeowner default on the note.  Traditionally before investments banks became involved, the holder of the note was the holder of the mortgage.  This made sense because the party with the right to collect payments on the note would want to be able to foreclosure using the mortgage if the homeowner defaulted.  To streamline the securitization process, the investment banks created an entitled called MERS.  The investment banks would transfer mortgages to MERS (to avoid paying real property mortgage taxes  and recording fees to the County by bypassing the County Clerk’s offices), thereby separating the mortgage note from the mortgage.  MERS would hold the mortgage for whoever later claimed to be the owner of the homeowner’s mortgage note.
This seems to leave room to argue an incomplete and ineffectual perfection of a security interest in the homeowners home and a way for the Banks to  avoid paying mortgage tax to the County Clerk and a fraud upon Consumers.  Since the entities that buy the Note have much bargaining power, this puts consumers at a disadvantage and deters banks from negotiating with consumers in good faith rather than bullying them.

Are Counties and Municipalities raising our real property and other taxes to allow banks to find a legal way to circumvent the payment of taxes and recording fees?

Consent to change of attorneys – New York Civil Practice Laws and Rules Section 321

If a party appears by attorney such party may not act in person in the action except by consent of the court. (b) Change or withdrawal of attorney. 1. Unless the party is a person specified in section 1201, an attorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party. Notice of such change of attorney shall be given to the attorneys for all parties in the action or, if a party appears without an attorney, to the party. 2. An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct. (c) Death, removal or disability of attorney. If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs. –
Why would a Judge intentionally violate CPLR Section 321 (b) (2) and require an attorney to move to be relieved after the client determines that he should go pro se?

Where in the CPLR are Judges authorized to require a motion where the attorney and client agree that the client no longer desires representation?

Domestic Violence

In recent years, there has been a political agenda in the Courts to punish the perpetrator of domestic violence.  This may mean criminal prosecution or the issuance of a document known as an Order of Protection by the Family Court in lieu of or in addition to an Order of Protection issued by the Criminal Court.

Without question, it is now possible for victims to escape a volatile situation.  But at what cost?

Do Courts and Judges have any real understanding of what it means to be victimized by domestic violence?

Or are Courts and Judges simply afraid of the political repercussions of not punishing a batterer to their own livelihood and of seeing their names in the newspapers and on television when the victim is injured?

Over and over, the Courts have punished persons who try to break free from the cycle of violence by removing their children claiming that the batterer is “the better parent”.

Frequently, the Courts and Judges have punished victims of violence by not giving them their fair share of equitable distribution, financially devastating the victims, or not providing adequate child support or rehabilitative maintenance.

If Judges had any real concern for victims of violence and their children, they would make sure those victims are provided for adequately financially.

Once more it seems likely that the legislature has to step in and remedy an epidemic where the branch of government that is supposed to be the most insulated from political corruption, seems to be the most influenced by politics.

Can you appeal the determination of a Support Magistrate in Family Court?

You must first file objections to the Order of the Support Magistrate within 30 days of the date of the Order of the Support Magistrate’s Order.  0 – 5 additional days are added depending upon how the Order is delivered to you, whether in person, by express mail, or regular mail.  If you are not happy with the Order on the “objections”, you can then file a Notice of Appeal, a copy of the Order being appealed, and additional documents which will start the Appeal process.

Appeals from Family Court Orders proceed on the original record.  In other words, you do not need to incur the expense of a printer.

Should one ever declare bankruptcy while a divorce is pending?

For information about the complications of filing for bankruptcy during the course of divorce proceedings, please refer to one the cases cited in the website MildredJMichalczyk.com, where a litigant declared bankruptcy and was financially devastated.

The idea is to conserve as much money as possible so that if you need a trial, you have it to go forward and will not be railroaded.  Do not force your attorney to engage in silly fights of furniture and cars, conserve your resources.

Should one ever contact the media while a divorce or Family Court proceeding is pending?

Contacting the media and using social media in your divorce is a very bad idea.  A tale to the wise: litigate your cases in the Courtroom.  Make every attempt to settle your cases because in most cases, a trial will bankrupt your family. However, contrary to the advice of most legal reform groups (who have their own agenda – except for one (1) woman who has a heart of gold and was someone I was proud to call my friend for many years), do not declare bankruptcy because then the Trustee gains control over all your assets.