(Judge Nelva Gonzales Ramos)
The judge’s denial of MERS/BoA’s Motion to Dismiss in the case of Nueces County v. MERS et al. is AMAZING! Not because it’s novel, but because it actually follows the law! It’s like Neil Garfield or Matt Weidner or David Rogers wrote it. Or like I wrote it! In fact, in my losing case of Kirby v. Bank of America (Southern District of Mississippi, 2012), I did use many of these same arguments–any sane, reasonable person would have! You have got to read this decision!
Normally I might be tempted to highlight a sentence or two from the judge’s order and then mumble through my understanding of it, but with this brilliant order, all that needs to be done is to provide the blockbuster, bombshell quotes from it (for those who may not have the time or inclination to read it). The quotes themselves are commentary enough, so here goes:
1. “MERS does not, however, hold any beneficial interest in the deeds of trust, and it is not a beneficiary of the deeds of trust. It is merely an agent or nominee of the beneficiary.” (p. 14)
2. “By having itself designated as the “beneficiary under the security instrument” in the deeds of trust presented to the County Clerk for recordation in the County’s property records, knowing that it would be listed as the grantee of the security interest in the property, it appears that MERS asserted a legal right in the properties. The Court concludes that, viewing the FAC’s allegations in the light most favorable to Plaintiff, one could plausibly infer that the recorded deeds of trust [naming MERS as “beneficiary”] constituted fraudulent liens or claims against real property or an interest in real property. “ (p. 14)
3. “While Defendants may not have acted with the actual purpose or motive to cause harm to the County, the FAC alleges that through their creation of MERS, Defendants intended to establish their own recording system in order to avoid having to record transfers or assignments with the County and paying the associated filing fees. (FAC ¶¶ 2, 3, 17.) Accordingly, one can reasonably infer from the allegations set forth in the FAC that Defendants were aware of the harmful effects the fraudulent liens would have on the County. That is sufficient to establish intent.” (p. 16)
4. “Accordingly, the Court concludes that the FAC sets forth sufficient facts to give rise to a plausible inference that Defendants made false statements to the County regarding their rights under the deeds of trust and their relationships to the borrowers in the mortgages issued by MERS members.” (p. 22)
5. “County records as having a security interest in the properties. Accordingly, viewing the allegations of the FAC in the light most favorable to Plaintiff, the Court concludes that one could plausibly infer that Defendants made material misrepresentations of fact to Plaintiff in the deeds of trust presented to the County for filing.” (p. 23)
I’m so excited I can hardly contain myself! This judge gets it EXACTLY right! She even defers to Carpenter v. Longan! There is obviously a major schism in the Texas federal judiciary, and this judge–Nelva Gonzales Ramos (an Obama appointee)–comes down on exactly the right side!
Reblogged this on North Cal. 925-957-9797 So.Cal. 909-890-9192.
Reblogged this on Deadly Clear and commented:
one could plausibly infer that the recorded deeds of trust [naming MERS as “beneficiary”] constituted fraudulent liens or claims against real property or an interest in real property. ” (p. 14). Ya think?! And this is only part of the underlying story.
Yes – pretty terrific isn’t it – now if the rest of the dodos on the bench would read her decision . . . thanks for sharing!
Does that also includes Hawaii judges, Ya think?!!!
The judges here in Hawaii are sticklers…if you google Melvin and Donna Amina and the Williams from Hilo…you will see that they were successful in Judge Seabright’s courtroom
the House of Cards is beginning to crumble Justice for the Homeowner
This is amazing organization. A lot of people don’t have $$$ to buy justice, including me.
I’ll share, spread. We got evicted right in the stormy winter last year, borrowed from family to pay for lawyers. Did a securitization audit to prove WFB is no owner of my note, at no point in time…fraudulent trustee assignment to Cal Western Reconveyance, auction off my home, investor flippers sold it to their insider contact…as in insider trading. Case CMC coming up on 07/24/13. Our level of stress, anxiety, uncertainty is more than we can bear. As a single parent I feel so bad dragging my son through this mud. I will sure keep this public charity in mind as my case move forward…
It’s about damn time!! Deceptive deeds, lies, theft, all the evil eventually shows itself.
Thank God one of the judges has the courage and brains to see through all the shit.
Wish all the other stupid( actually paid off by the banks) judges were honest and not crooks!
I think this was in response to a motion to dismiss. “When viewed in a light most favorable to the Plaintiff”, the plaintiff in this case being the COUNTY, not even a home owner. This is just an initial inspection to see if the pleading states a cause of action, NOT a judgment on the merits.
OK, so the case is over the door mat, but this is not a home run, it just means the Plaintiff has gained access to the stadium.
You’re right–the order is not dispositive. However, it certainly puts the defendants on notice that this case is not going to receive the rubber stamp like all the other, similar cases have been getting. She is at least going to make them work very hard to defend themselves, which is atypical of judges as a whole, particularly in a state like Texas. Not only that–she unequivocally and correctly declared that MERS is not a beneficiary, despite the fact that deeds of trust say otherwise. That is extremely significant for a judge to acknowledge and the defendants are going to have hell of a time dancing around that issue.
In that sense, I think this order IS a home run, because once the judge has decided MERS isn’t a beneficiary–which she has–MERS has nowhere left to hide, because this whole MERS/securitization/fraudulent foreclosure scam depends for its very existence on the myth that MERS is a beneficiary/mortgagee. The fact that the judge acknowledges MERS’ lack of beneficiary status is going to be the backdrop of the entire case, in this non-lawyer’s opinion.
Reblogged this on questioneverything40 and commented:
About time they started making the banks follow the law. Let’s see if this leads to more enforcement of the laws, I sure hope so.
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