New York Attorney General Eric Schneiderman has received a lot of the headlines for his no-holds-barred investigations against the banks, but he’s had a partner in Delaware’s Beau Biden. Because New York and Delaware were where most of the securitization trusts were originated, having a united front on this issue of fraud is vital, and despite the family ties with the White House, Biden has been uncompromising. His latest salvo is a lawsuit against MERS, the electronic registry owned and funded by the banks, which they used to evade the public land transfer system and save money on county recorder fees:
The Delaware attorney general’s office sued Merscorp Inc., which runs a national mortgage registry used by banks, saying its practices are deceptive and hide information from borrowers.
The MERS database, which tracks ownership interests in mortgages, obscures information from borrowers and impeded their ability to fight foreclosures, Delaware Attorney General Beau Biden said in a complaint filed today.
“MERS engaged and continues to engage in a range of deceptive trade practices that sow confusion among consumers, investors and other stakeholders in the mortgage finance system, damage the integrity of Delaware’s land records, and lead to unlawful foreclosure practices,” Biden said.
MERS is certainly a component of the breakdown in chain of title, and does help to obscure the true owner of loans, which damages borrowers seeking relief from foreclosures. A varying set of lawsuits around the country have either thrown out MERS officials as unable to act as the nominee in foreclosure cases, or blessed the system. So it’s not totally clear what will happen; the law has varied from state to state.
Nevertheless, I believe this is the first Attorney General to actually sue MERS, and Biden is making a particular case. He is saying that MERS information is frequently inaccurate, and that the public cannot fully access the records in the system to determine the owner of their loans. “The unreliability of the MERS System, when compounded with MERS’s reliance on the records in the MERS System, is deceptive and harms consumers by permitting and encouraging foreclosures for which the authority has not been fully determined and may not be legitimate,” the attorney general said in the lawsuit.
Importantly, Biden in the lawsuit sought a preliminary injuction against MERS from foreclosure operations in the company’s name, or from recording mortgage transfers. Delaware’s a small state, but if that injunction is granted, it could open a precedent that other states could use, and if enough did so, it could shut down MERS.
MERS was already part of an ongoing investigation by both Biden and Schneiderman, and this is the first result. Biden’s lawsuit touches on the issue of recording fees, over which several counties, including Dallas County, Texas, have sued MERS in the past. That clawback could result a major source of revenue for local governments, paid for by MERS’ owners, the large financial institutions.
Good for Biden, who must have a tremendous amount of pressure on him given his familial ties.
UPDATE: Parallel to this action, NY AG Schneiderman subpoenaed MERS, seeking additional information on how lending institutions use the registry. Incidentally, the fine that Biden is seeking is $10,000 per violation. MERS has 60 million mortgages on its registry, I don’t know how many in Delaware.
UPDATE II: Yves Smith:
The damages sought are substantial, $10,000 per violation. Since MERS is a tiny company, with under 50 employees and many of its operations outsourced (and no reason for it to maintain a substantial balance sheet), success in court would almost certainly mean bankruptcy for MERS. In theory, a new consortium or private investors could buy the database out of bankruptcy, but how would one structure its operations so as to not run afoul of the law? Yet with so many mortgages recorded in the MERS database (the registry has claimed over 60 million) the banks will need to find a way to keep it going and operate it more in line with the law [...]
Unless MERS gets injunctive relief, these two provisions effectively stop foreclosures in MERS’s name in Delware. MERS has repeatedly said it does not hold any interest in the property or note in depositions. And the mortgage registry system had also quietly put out a notice to members months ago telling members to stop foreclosing in the name of MERS. Not allowing MERS members (servicers, banks, and their foreclosure attorneys) to assign mortgages out of MERS will stop the foreclosure apparatus cold. This is a legitimate legal strategy to get a foreclosure freeze and force the servicing industry to the table to negotiate a much bigger fix.




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I am really surprised more AG’s haven’t sued MERS just for the lost revenue that all the counties are losing because the Banks are using MERS and not the legal registration process at the county registry of deeds. I am sure it must be in the millions of dollars!!
I really admire Beau Biden; the pressure on him must be intense. And he had the opportunity to practically sleepwalk into his dad’s former Senate seat (although Christine O’Donnell was a mere blip when he decided, so the territory looked different). But he stayed to fight for the people in a very direct way, this way.
This is a bold and brazen move. Let’s hope others follow suit.
Fixed it for ya.
I wouldn’t want to be at the Biden family Thanksgiving dinner.
I’ll bet that even the turkey will be torn apart … amid cutting invective and sharp jabs … eCAHN.
Well, great good on Beau … one hopes, seriously, that some things “hold”, though …
DW
What international disaster would happen if some one dropped the platter on Tgiving?
The destruction of China.
The downfall of Turkey.
The overthrow of Greece.
It’s an old joke; their might have been a 4th country involved but I can think of it anymore.
I wish Biden & Schneiderman well. Seems a little lonely on their side of the political pressure. Liked Schneiderman’s demeanor & words very much on the Rachel interview you posted yesterday.
I’ve not heard that one before, eCAHN … I imagine it might be in for a “revival” of sorts …. Iran when I heard it, however.
;~DW
Hey there, DW, been missing you the last few days. I was so despondent, I wandered into the local Boggateria last night, and got all bruised brushing the cockroaches off of me.
Agree with you, totally, eCAHN.
And very much appreciated Schneiderman’s openess and honesty, as I perceived it to be.
I wonder how many missives your some-time-ago link to his office resulted in?
I happily sent my wee thoughts and appreciation along.
DW
I have the vaguest recollection, to the effect of, “Look how Egypt ya.” Would that be the same joke, or just the onset of senility? ;-)
It’s prolly the neocon super secret plan. Along with Iran.
I’m not Russian to keep up with all the country slurs happening in this thread.
“Boggateria”! LOL!!!
Ah, rc, you are a man of true and worthy mettle …
Were they serving left-overs or fresh food for throttle?
(Been “occupied” with mundane chores … wish the damn leaves would leave … and I ain’t gonna mow no mo’ … I hope … gutter-cleaning is next “up” … as you well know, there is no peace for the wicked … peas, mebbe, but no respite for the jaded, the cynical, and abjectly obtuse …)
;~DW
That is very frank and germaine of you, eCAHN.
Who started all this country muse sick, anyhoo?
Jeez.
DW
Last timeI try to help you out! Harumph. It’s not my fault my father was Italian and my fingers went Roman on the keyboard. LET’S STOP THIS NOW BEFORE IT BECOMES SERIOUS.
The next county over is filing a lawsuit against MERS for skipping transfer taxes.
This will explode beyond anyone’s expectations, FU BANKERS and savvy businessmen.
is there any reason why he is not also pushing criminal charges against executives based in delaware
Slipped on Iceland…
Eaten by Wales…
Djibouti.
Two against one. Not fair.
Besides, I’ve just been made aware of a JFK document private archive and am scanning thru it on another window. Turns out a friend of mind started to digitize the Mary Ferrell collection many years ago.
Question to those above my I. Q. (room temperature usually) how can Mers be so unfunded and uninsured to take on such a great liability. If you handle 50 million loans shouldn’t your Company have assets and insurance to cover your potential liability? And what is title insurance? Wouldn’t a title insurance insure your title?
Leftovers, of course. Nothing else on the menu there. And the irregular patrons, ranging from the obtuse to the abstruse.
Are you a Communist or sumpin”? it’s the American way to underfund your liabilities. Incorporate if you don’t like it. ;-)
The point is, every state’s consumer protection laws are different. But, as a general rule, they tend to have a provision where the AG can sue parens patriae (on behalf of all the people) to stop an abusive or deceptive practice. This usually comes up in the context of stuff like stores having “going out of business” sales that never end and they never go out of business, or selling kid pajamas that burst into flames on a warm day.
When it comes to land records, it’s a similarly fragmented picture. Each state, by virtue of the way its constitution structures its government, has a different allocation of power and responsibility for all sorts of different things. In the main, though, most states’ structures have the land records responsibility, power to enforce the rules, and money-handling done at the county, not state, level. So, just saying that the AG should step in and sue MERS to stop the scam it’s perpetrated on the recording system of Banjo County and collect the money that should have been paid, isn’t going to work. The responsibility likely lies at the county level.
Delaware, though, has only three counties. Compare that to Pennsylvania with 67, or New York with 62 (including the 5 boroughs of NYC; of the other counties, I especially like the name Cattaraugus, which means “bad smell”). As far as I understand it, Delaware’s counties don’t really have that much power independent of the state. Other states’ counties have varying amounts of power.
But, systemic frauds on land records are often the kind of thing which can only be properly addressed at the state level. Sometimes, that’s a function of a powerful local pol having too much power in a county, messing with the land records and being able to stop the local people from enforcing the law. Such was the case in an old New Jersey case, Hyland v. Kirkman, in which AG Hyland sued to enjoin a prominent local rich guy and pol, Kirkman (think a latter-day Nucky from Boardwalk Empire), from making up and recording “wild deeds” (deeds without any preceding chain of title) to vacant land in the Jersey Pinelands, and to nullify the wild deeds. Sometimes it’s a matter where the scam is going on in more than one county.
We cannot leave out of the discussion the impact of politics – I cannot see a Republican AG suing any bank or MERS to stop MERS’ chicanery.
And Beau is probably doing this with his dad’s approbation, because Joe will be too old to do anything other than retire come 2013 (an Obama loss) or 2017 (a win) and for his future success Beau will have to teach the banks he’s dangerous if not well-bought-off.
I am really sorry that you started it lol. See, it’s like you were Fannie Mae, and I was just a poor suggestible banker that couldn’t help but be drawn in.
I’ll ask you to please refrain from making remarks about my derriere in the future.
I can’t be Communist I have an I. Q. at room temperature.
If someone buys a foreclosed house and closes escrow part of the escrow fee is for title insurance. Who underwrites that and aren’t they in a mess of trouble when the feces hit the fan? (assuming something comes of this Biden suit)
I’m just Hungary for the news.
OT – At the Oakland GA last night, it was announced that OWS has pledged to give $20,000 to Occupy Oakland. A very nice expression of solidarity. Also at the meeting, there was consensus for a citywide general strike next Wednesday.
Suing MERS?! This blows my mind. Really, there still exist actual public officials intending to rightfully burn the MERS farce/fraudgasm to the ground?
The kid’s got cajones. Gotta give him that.
What I’d like to know is IF he gets a call from the White House.
Bet his does!!!!!
I ownder IF Obama will call the DoJ and have THEM claim jurisdiction on this and then torpedo the various states’ abilities to proceed.
Ten’ll get you twenty THAT happens.
The titles of all the properties seem to have crossed State lines so that might be a possibility. Let’s get the FBI tracking down the bank robbers; wait, the banks are the robbers. Gives the term bank robbery a new meaning for the 21st century.
Nah, it’s still Bill Black’s, “best way to rob a bank is to own one.”
As you wish, ma’am. Henceforth, I’ll only make such remarks in the past. And I’ll never say Rumpelstiltskin to anyone.
The title cos will never have enough assets to pay off all the claims that should arise from this mess. Ah, the joys of corporate bankruptcy!
I’m so Hungary, I think I’ll eat a Zanzibar. Bad realitychecker. Very bad.
I forsee a massive crisis for the Title Insurance companies who insurre the “questionable” titles. Can you spell AIG??????
..
..
Ohhh, I guess I kinda gave that one away.
“Bank robbery, twenty-first-century style” … you know, BSbb, that has a whole “looky forwardy” astute aspect about it … and, come ta thinkalate aboot it, ‘cuz “they” are gonna try to “privatize” the PA Turnpike … so does “highway robbery” and ya know, the way the big banksters are whining that none of the “good stuff” they do is appreciated, “Gawd’s Work” and all that, why, these wee little people, at heart, the Too Big To Fail and Too Big To Jail are merely the “Homeland”‘s 21st century Petty Thieves … you betcha!
DW
My hope is that the investors who might be grabbing up all these foreclosed properties that they intend to rent; thereby making more money off the pain and suffering of others will be the one’s who can’t recover a money judgement from the title companies.
I believe the Supreme Judicial Court of Massachusetts ruled just that way a week ago. It may seem satisfying as to professional “vulture investors,” but it’s less acceptable when the innocent purchaser for value is a little guy just trying to make an honest investment to build his nest egg. You know, there are many such people out there, and to have the consequence for the banksters’ MERS lawlessness fall on people like that is not an acceptable result, IMO. But, for sure, the fear of that will help keep the housing market suppressed. The only just result in this whole mess would be to clawback assets from all who can be shown to have profited from all these mortgage-related shenanigans, on an unust enrichment theory, and make those assets available to help settle legitimate claims.
Good for Beau! I hope he doesn’t get too satisfied with the AG duty, though, as important as it is.
He’s needed nationwide.
RJ Eskow (blogs for HuffPo a lot) has a great breakdown of MERS -
http://www.ourfuture.org/blog-entry/2010104220/pictures-mers-part-1-corporate-documents-illustrate-mortgage-shell-game
Short answer is it’s funded and owned by BofA, Wells Fargo, HSBC and a host of others to ‘streamline’ title transfers.
I wasn’t feeling well today, but just saw this and, Wow!, do I feel better. Go Beau!
Hmmm…. I wonder when Beau’s hooker/escort will surface to “tell all”. Beau needs to be calling Spitzer for some tips on how he might protect himself.
Here’s what will happen: Some big, connected trust(s) will swoop in and buy bunches of these properties for pennies on the dollar, then congress will pass a law making the titles good. Obama will misplace his veto pen.
Failing that, the Supremes will rule that way, somehow excluding little guys from the benefit of the ruling.
I would like to disagree with that, but have no historical basis for doing so. :-(