The MERS Mortgage Twilight Zone

In the wonderful world of mortgage foreclosure, in which dwells, one of the most frustrating aspects is the way that the banks and their agents have set up fictional chains of assignment upon assignment, by entities in which the same people appear as lawyers and principals, agents and employees--all to paper over the loss of the paper trails which are required to establish what entity (if any--a lot of the original lenders are defunct and may not have assigned the notes before, er, defuncting). As the scope of the forclosure crisis has expanded exponentially, the mortgage companies and their attorneys have engaged in remarkable legal pirouettes to hide the fact that the necessary records don't exist, or are lost beyond recall. As the New York Times reported last August, Judge Arthur M. Schack of Kings County has dismissed a series of foreclosures for just such gimcrack song-and-dance lawyering, and earned fame just by making banks follow the rules applied to ordinary litigants.

But this week Judge Schack reached a new peak in HSBC Bank USA, NA v. Yeasmin, in which he analyzed such a "who's on first" in litigation:

Plaintiff made its renewed motion for an order of reference 204 days late, in violation of the Court's May 2, 2008 decision and order. Moreover, even if the instant motion was timely, the explanations offered by plaintiff's counsel, in his affirmation in support of the instant motion and various documents attached to exhibit F of the instant motion, attempting to cure the four defects explained by the Court in the prior May 2, 2008 decision and order, are so incredible, outrageous, ludicrous and disingenuous that they should have been authored by the late Rod Serling, creator of the famous science-fiction televison series, The Twilight Zone. Plaintiff's counsel, Steven J. Baum, P.C., appears to be operating in a parallel mortgage universe, unrelated to the real universe. Rod Serling's opening narration, to episodes in the 1961 - 1962 season of The Twilight Zone (found at www.imdb.com/title/tt005250/quotes), could have been an introduction to the arguments presented in support of the instant motion by plaintiff's counsel, Steven J. Baum, P.C. - "You are [*7]traveling through another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone."

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The language of the MERS corporate resolution flies in the face of documents recorded with the City Register of the City of New York. The filed recordings with the City Register show that the subject mortgage was owned first by MERS, as nominee for CAMBRIDGE, and then by HSBC as Trustee for a Nomura collateralized debt obligation. However, if the Court follows the [*8]MERS'corporate resolution and enters into a new dimension of the mind, the mortgage twilight zone, the real owner of the subject mortgage is WELLS FARGO, the MERS Member and loan servicer of the subject mortgage, because the corporate resolution states that the Member is "the beneficial owner of such mortgage loan." The MERS mortgage twilight zone was created in 1993 by several large "participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system." (MERSCORP, Inc. v Romaine, 8 NY3d 90, 96 [2006]).

The Court's journey through the wondrous land of imagination takes several more permutations, leading to the dismissal with prejudice of the foreclosure action, but I think you get the idea.

Judge Schack has earned a tribute, and this one seems apt.

Manhattan Transfer- TWILIGHT ZONE theme 1979 from Coleccionista80 on Vimeo.