Opinionated
Two cents, for what its worth
It has long
been held that "equity will not suffer a wrong without a remedy."
Neu v. Gibson, 905 NE 2d 465 -
In
accounting and finance, equity
is the difference between the value of the assets/interest and the cost
of the liabilities of something owned. For example, if someone owns a
car worth $15,000 but owes $5,000 on that car, the car represents
$10,000 equity.
-
Wikipedia
4. In the context of real estate, the difference between the current fair market value of the property and the amount the owner still owes on the mortgage. It is the amount that the owner would receive after selling a property and paying off the mortgage. Also referred to as “real property value.” - Investopedia
Dealing with the Intangible
Does the court even pay attention to what is writes when opining an appeal? Or do the “elect” ones use juniors to write the opinion? If so, did the junior use logic to make it determination? Did the junior understand law?
Logic - reasoning conducted or assessed according to strict principles of validity.
Here is a simple opinion which could prove that logic was a factor, but yet, not a factor when transferable records are portrayed as negotiable instruments. But what is more important is for you to understand this Good case is an intangible case. This case is dealing with an electronic promissory note, whatever that is, because in E-SIGN it is called a "transferable record". See 15 USC 7021. In all legality, there is no such thing as an electronic promissory note. You can't negotiate an electronic promissory note, you can only create, register, transfer, or assign a transferable record. UCC 3 is excluded. See 15 USC 7003.
Good v. WELLS FARGO BANK, NA, 18 NE 3d 618 -
This opinion when read with knowledge of E-SIGN, and Article 3, of the Uniform Commercial Code alone are enough to understand that the court screwed up, as far as evidencing a crime being committed in a civil case.
It is truly evident that the courts are ignorant when it comes to MERS. For the court, It is simple and clear if you read the law you cite, because E-SIGN excludes Article 3. It is sad that the homeowner’s in this country are being deprived of their real property because of ignorance? However, in all fairness, the court did recognize a “note” problem, so it reversed and remanded the case back to the lower court. Way to go pro se. I do not know the outcome of that case, and it does not matter because this is about explaining how a court describes a crime without realizing what is written in its opinion.
It is not just a “note” problem in this incident, but also the “mortgage” being what Wells Fargo is attempting to pursue with a transferable record.
“In
If man in Podunk
In Good it is alleged the “borrower” signed an electronic promissory note. E-SIGN was created for the use of enforceable electronic contracts with electronic signatures. An electronic promise to pay is not governed by Article 3 of the Uniform Commercial Code, see 15 USC 7003(a)(3). Nevertheless, if this were the case, then another question arises as to the deed of trust. Was the deed of trust an electronic contract also? If so, what law supports the perfection of the electronic lien? E-SIGN excludes Article 9, of the uniform commercial code, so in essence perfection of a security interest is excluded from E-SIGN. I suppose the court thought this type of transaction was like the “days of old”? Or is it turning a blind eye? It is oddly amazing to see this world promote electronic mortgages, yet it cannot see the difference in laws that govern, nor the sustainability of it.
How can an electronic promissory note have a deed of trust attached to it? If Article 9 were governing, the process still would not work, simply because courts across the country have stated “real estate mortgages are not governed by the UCC”.
Are you beginning to see why summary judgments are the tool of choice for lawyers involved in the MERS eScheme. The uses is unconstitutional, yet the courts tend to overlook the severity of the issue at hand.
So, let’s get into a certain portion of the Good opinion, and let us understand what the court wrote, whether it completely understood, or not. The pro se did a fantastic job of fighting Wells Fargo. Hats off.
According to the courts opinion;
Appellee's App. p. 29 (emphasis added). The loan was
secured by a mortgage. The mortgage identified Synergy as the lender and
Mortgage Electronic Registration Systems, Inc., ("MERS") as a nominee
for the lender.
In 2011, Good stopped making payments on the loan. On
November 9, 2011, MERS, as nominee for Synergy, assigned the mortgage to
Wells Fargo. This assignment was recorded on November 14, 2011.
On November 7, 2012, Wells Fargo filed a complaint to
foreclose the mortgage. Good, acting pro-se, filed an answer alleging
that Wells Fargo was not a holder in due course of the Note and that it
lacked standing.
On April 5, 2013, Wells Fargo
moved for summary judgment. In support of its motion, Wells Fargo
designated an Affidavit in Support of Judgment ("the Affidavit") in
which Shemeka Moye, Wells Fargo's Vice President of Loan Documentation,
stated Wells Fargo, "directly or through an agent, has possession of the
Promissory Note at issue in the plaintiff's cause of action. Wells Fargo
Bank, N.A., is either the original payee of the Promissory Note or the
Promissory Note has been duly indorsed [sic]."
Re-iterate
According to Fannie Mae eMortgage eDelivery Guide
5.2.2. Automated Certification of eMortgage Loans
Fannie Mae allows lenders to employ automation in the certification of eNotes. If the Document
Custodian will automate certification, the automation process must meet the manual certification requirements outlined above in Section 5.2.1 and incorporate the following:
• The eNote must be validated to be a Uniform Instrument eNote.
• Arcs within the eNote must be validated to ensure that the data contained in the Data section of the note matches the data visible in the View section.
• Data must exist in all data fields of the View section to the eNote.
• The data certification process must ensure that the data in the View section of the note is compared to the data on the Schedule of Mortgages.
• The borrower’s electronic signature must match the borrower’s name. Special processing may be required if the borrower’s signature is holographic.
The mortgage identified Synergy as the lender and Mortgage Electronic Registration Systems, Inc., ("MERS") as a nominee for the lender. So, the note defined the Lender as “Synergy”, and Good as the “borrower”? Let’s look at Synergy? And Synergy is a MERS member. And Synergy is a mortgage broker. How can you tell without doing research? Look at the facts in the opinion.
The authoritative copy of this Electronic Note will be the copy identified by the Note Holder after loan closing but prior to registration in the Note Holder Registry.
This is where the broker can locate funding for the potential real estate mortgage loan, obtain the credit from the creditor, then pledge the potential real estate mortgage loan to the creditor as collateral. In other words, Synergy was an account debtor, according to the verbiage in the “issuance of transferable record” in the court opinion. The trail begins with the intangible.
If this Electronic Note has been
registered in the Note Holder Registry, then the authoritative copy will
be the copy identified by the Note Holder of record in the Note Holder
Registry or the Loan Servicer (as defined in the Security Instrument)
acting at the direction of the Note Holder, as the authoritative copy.
The current identity of the Note Holder and the location of the
authoritative
620*620
copy, as reflected in the Note Holder Registry,
will be available from the Note Holder or Loan Servicer, as applicable.
One who buys, or sells in the
Note Holder Registry, must be a
member, or at least hold a temporary
membership. Synergy being a member, creates an eNote, to register in the
Note Holder Registry, but the name of the Note Holder will be identified
after loan closing. In a traditional loan closing, the borrower would
know who the Note Holder was before the closing, not after. If
understood, this is where the “investor” comes into play. Investors like
Ginnie Mae, Fannie Mae, Freddie Mac, Veterans Administration, FHA, to
name a few who provide credit to account debtors who muster up pools of
mortgage loans to sell to the investors. That could be ok, but during
the process of securitization,
the laws which govern the underlying collateral, ie. The Note and lien
have law which govern them in order for a debt to be a “secured” debt.
This is the problem with millions of real estate mortgages across the
Lie, lie, lie
Words like Wells Fargo's “Vice President of Loan Documentation” is probably the most used phrase used by MERS members, no matter how interchangeable the bank name is. Nevertheless, let’s look at what the VP admitted;
Wells Fargo's Vice President of
Loan Documentation, stated Wells Fargo, "directly or through an agent,
has possession of the Promissory Note at issue in the plaintiff's cause
of action. Wells Fargo Bank, N.A., is either the original payee of the
Promissory Note or the Promissory Note has been duly indorsed [sic]."
The pro se didn’t buy that and the pro se responded to that claim.
This should have been where the court realized a different note is in play? Not to mention the VP did not know whether Wells Fargo was the original payee, or the Note was endorsed? Let me ask you something? How do you endorse an electronic promissory note? And where is the word "endorse" defined in E-SIGN? One must remember, Article 3 is excluded from E-SIGN, so that definition doe not apply.
Wells
Notice “Holder” takes on a new meaning, a meaning not defined in Article 3, Uniform Commercial Code. But that is not all.
Wells Fargo replied claiming Good failed to designate
evidence that creates a genuine issues of material fact for trial. Wells
Fargo also asserted that it controlled the electronic note and was
entitled to enforce it as the holder pursuant to 15 U.S.C.A. § 7021(d).
In support of this argument, Wells Fargo relied on a Certificate of
Authentication ("the Certificate") in which Assistant Vice President of
Wells Fargo, Thresa Russell, stated:
1. .... The Bank acts as a servicer for the Federal National Mortgage Association ("Fannie Mae") with respect to the residential mortgage loan executed on the [sic] 3/14/2008 by BRYAN GOOD, ("Borrowers").... The promissory note evidencing the Borrowers' obligation to repay the Loan is an electronic record, as authorized by the federal ESIGN Act, 15 USC § 7001 et seq., and in particular 15 USC § 7021.
At this point, did the court use logic? Did the court look at past court cases to understand what “The Bank” stated? Do you understand the verbiage in the transferable record now?
If, according to the Deed of trust, if not the electronic promissory note, MERS members have chosen to sell parts of the note, “together with this security instrument” to investors of the world. How that legally works even within the guidelines of E-SIGN is not logically feasible. There is only one (1) Authoritative copy. How do you sell parts of the Authoritative Copy is it is the original?
So, why did the court not question the appellee about the 3rd party, Fannie Mae, and its involvement? If Fannie Mae was named as the Note Holder after closing, which most likely was the case, Fannie Mae would be the Note Holder named in the Authoritative copy. According to Fannie Mae guidelines, this would be the case. Fannie Mae would hold the Authoritative copy, and its servicer would view a copy of the Authoritative copy. But what about the lien? Was a lien ever recorded in Fannie Mae’s name in public records? Or did the “servicer” tuck an unrecorded assignment into the Fannie Mae file? That is only actual notice, not public notice.
Whether Wells Fargo realizes it has contradicted itself is one thing, but for a court of law to not catch such an admission, it makes one wonder just who is looking at the case? Jr. or Sr.?
In 2011, Good stopped making payments on the loan. On
November 9, 2011, MERS, as nominee for Synergy, assigned the mortgage to
Wells Fargo. This assignment was recorded on November 14, 2011.
Not really if you can catch the deception. Wells Fargo’s admission only shows that some MERS member, transferred the servicing rights from Synergy to Wells Fargo in the Note Holder Registry in 2011. MERS is a computer system, it cannot determine an action, it can only receive an instruction through its software design.
If “On November 7, 2012, Wells Fargo filed a complaint to foreclose the mortgage.”, how did Wells Fargo have standing to file the complaint? It didn’t. If there were any party, it would be Fannie Mae, even if that was possible.
The more you begin to understand this debacle, the more you will realize why “mortgage servicer” was an important name to be place within property codes across the United States after the year 2000 when E-SIGN was enacted. But you will also notice that it was a gradual process to get the “codes” change so hopefully nobody would notice.
In Texas, the property code requires that a governmental agency record its lien. Failure to do so breaks the chain of title to the lien. Is a law like that applicable in other states? research and find out.
Oh, and did you notice how the “words” seem similar to the tangible Note, and mortgage? They do the same thing with alleged paper real estate mortgages too. Lie, Lie, Lie.
Now, for the sixty-four centavos question; According to the court, the bank produced a copy of the electronic promissory note to show the Good electronic signature, that would mean the electronic promissory note was converted to paper? Let's look at Fannie Mae again [pg 18] to see the verbiage of (D) which was mentioned in the "issuance of Transferable Record". I will add emphasis)
'ole Switch-a-Roo
(D) I expressly agree that the Note Holder and any person to whom this Electronic Note is later transferred shall have the right to convert this Electronic Note at any time into a paper - based Note (the "Paper-Based Note"). In the event this Electronic Note is converted into a Paper-Based Note, I further expressly agree that: (i) the Paper-Based Note will be an effective, enforceable and valid negotiable instrument governed by the applicable provisions of the Uniform Commercial Code in effect in the jurisdiction where the Property is located; (ii) my signing of this Electronic Note will be deemed issuance and delivery of the Paper-Based Note; (iii) I intend that the printing of the representation of my Electronic Signature upon the Paper-Based Note from the system in which the Electronic Note is stored will be my original signature on the Paper-Based Note and will serve to indicate my present intention to authenticate the Paper-Based Note; (iv) the Paper-Based Note will be a valid original writing for all legal purposes; and (v) upon conversion to a Paper-Based Note, my obligations in the Electronic Note shall automatically transfer to and be contained in the Paper-Based Note, and I intend to be bound by such obligations.
Can you show me a law in the United States, or elsewhere in the world, where you can "convert" a transferable record into an article 3, paper-based Note, and it be legal?
Though the verbiage allows the eNote to be converted to the paper-based note, but the paper-based note cannot be converted back to the eNote. How would any missing endorsements be lawfully enforced if the paper-based note did not contain such endorsements before it was converted?
Anyone signing an electronic promissory note with such verbiage is being coerced into a crime. E-SIGN excludes Article 3. That means the electronic promissory note was not created under the guidelines of Article 3, and it cannot be legal under Article 3 of the Uniform Commercial Code. eNotes are not governed by Negotiable Instruments law.
And even if the eNote were deemed to Article 3 worthy, it could not survive §3.203(d)
Don't go getting any ideas that anything on this website is considered as legal advice, legal opinion, or substitute for legal counsel. I speak from my life experience, therefore I provide my knowledge to those whom are interested.
The world have been deceived.