November 8, 2011

The Clerk of the Court for Duval County, Florida has sued MERS and its parent company for civil conspiracy, unjust enrichment, and fraudulent and negligent misrepresentation, claiming that “MERS has usurped the rights and privileges of the Florida Clerks of Court by establishing, maintaining and inducing lenders to use its private recording system, which unlawfully interferes and competes with the public recording system”. The suit seeks, among other things, an injunction to prohibit the use of MERS in Florida. As those of you who have followed MERS know, MERS made a decision years ago that Florida was the one state where it would cease instituting foreclosures in its own name. However, MERS has and continues to execute documents for the purpose of substantiating the filing or prosecution of foreclosures.

The real question will be whether, if this action is successful, it will have any impact on the existing Florida case law which permits MERS to do a host of things in connection with foreclosures, including assigning promissory notes which it does not own; assigning loans to securitized mortgage loan trusts years after the trusts close; assigning loans from bankrupt lenders without approval from the bankruptcy court, etc. Hopefully, it will have such an impact where the appellate courts of Florida will perceive that there is a conflict between the old decisions which uphold the actions of MERS and the frauds being perpetrated by MERS, and a consequent overruling of the “bad precedent” as to MERS.

On a separate note, we have received many thanks, praises, and congratulations of late from clients who are fighting foreclosure for our diligence in continuing to challenge the actions of banks, servicers and securitized trustees around the United States, and our tireless work in doing so. After now 4 years of hard work, it is apparent that most of the courts in the US are finally starting to see what really happened; that the foreclosing parties have not demonstrated that they have the right to foreclose; that they routinely fail to comply with the very agreements which govern the manner by which mortgage loans are transferred; and that they thus cannot railroad foreclosures through the system as they used to do so easily.

The next step, in addition to the assertion of affirmative claims against the wrongfully foreclosing parties, is the securing of evidence of insurances and other collateral sources which provided for benefits and payments upon default by the borrower in securitizations. Although Jeff Barnes, Esq. has obtained no less than nine separate court Orders compelling this discovery, the foreclosing parties have never, ever, produced the required discovery, resulting in both dismissals of foreclosures and the assessment of attorneys’ fees against the offending foreclosing party.

Jeff Barnes, Esq.,