Mass. Supreme Court Ruling: Oct 2011 - All previous foreclosures illegal and not valid

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(http://sherriequestioningall.blogspot.com/2011/01/buyers-beware-massachusetts-supreme.html)

Here is a portion of that post:
Now  they are going to rule on another case of a buyers  right to the
property, that was illegally foreclosed on by a MERS  bank.

A lower Massachusetts court had  already ruled against the buyer of a
foreclosure, saying they had  no right to the property, due to being
foreclosed on fraudulently by a  MERS bank.

That court case is now going to the  Supreme Court, as the buyer is
trying to keep the property he  purchased 3 years ago from the bank.

Imagine if the Supreme  Court rules against the buyer, as the lower
court has done....... I  can see a whole new area of law suits, when buyers
start losing their  money and property of foreclosures they have purchased.
Besides  that, I can't imagine there will be much of a market for
foreclosures, as they may become impossible to sell, as no title insurance company
will touch them.

_Bloomberg is the one even carrying the story_

(http://www.bloomberg.com/news/2011-01-21/faulty-foreclosure-case-in-massachusetts-high-court-may-hurt-home-buyers.html) , which  is amazing they would let people know they may have a huge problem if  they have purchased a foreclosure in the past.

This ruling from  Massachusetts will be important all around the country.
There  are already class actions that have started in a few states for previous foreclosures.  If the Massachusetts Supreme Court rules the buyer of the home has no right to the property fraudulently  foreclosed on, we can expect a whole rush of class actions throughout  the country against the banks.

I also posted warning all buyers of property.

(http://sherriequestioningall.blogspot.com/2011/01/all-those-who-are-looking-to-buy.html)
- DO  NOT BUY A FORECLOSURE AS I BELIEVED CLASS ACTIONS WOULD START THIS  YEAR FOR ALL HOMEOWNERS FORECLOSED ON! 

Portion  from post:
I believe we will be seeing Class Action Suits in All the States against MERS and ALL MERS Servicers and Banks this year!  Once  that happens, you can be assured ALL Title Insurance companies will  not even touch insuring the title of ANY foreclosure!

What does that mean to investors who buy foreclosures?  Means you may
possibly be out money and a house after it is all said and done (then
you can start your own lawsuits)!  But besides that banks will  have trouble
even selling foreclosures in the future, if Class Actions start!  

Who in their right mind would buy a foreclosure, if there are lawsuits and the all
MERS foreclosures were done through  FRAUD?!

So............ Just something for all the investors to  think about!  I would not touch a foreclosure with a 10 foot  pole, even if it was 1/4 the price of the market  value!

Yesterday they ruled and have upheld THE BUYER of a  piece of property
from 3 years ago, has NO RIGHTS TO THE PROPERTY!

Zerohedge has a great article on it and explains it  all. 

(http://www.zerohedge.com/news/guest-post-houston-weve-got-problem-bevilacqua)

Portion:


On Oct. 18th, 2011 the  Massachusetts Supreme Judicial Court handed down
their decision in the  _FRANCIS J. BEVILACQUA, THIRD vs. PABLO
RODRIGUEZ_
(http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10880)  –
and in a moment, essentially made foreclosure sales in the commonwealth over
the last five years wholly void.

In  essence, the ruling upheld that those who had purchased  foreclosure
properties that had been illegally foreclosed upon (which  is virtually
all foreclosure sales in the last five years), did not in  fact have title to
those properties.

Given  the fact that more than two-thirds of all real estate transactions
in  the last five years have also been foreclosed properties, this
creates a small problem.

The  Massachusetts SJC is one of the most respected high courts in the
country, other supreme courts look to these decisions for  guidance, and
would find it difficult to rule any other way in  their own states. It is a
precedent. It's an important  precedent.

Here  are the key components of the Bevilacqua case:


1. In holding that Bevilacqua could not make  "something from nothing"
(bring an action or even have standing to  bring an action, when he had
a title worth nothing) the lower land  court applied and upheld long-standing
principles of  conveyance.


2. A foreclosure conducted by a non-mortgagee  (which includes basically
all of them over the last five years, including the landmark Ibanez
case) is wholly void and passes no title to a subsequent transferee (purchasers
of foreclosures  will be especially pleased to learn of this)


3. Where (as in Bevilacqua) a  non-mortgagee records a post-foreclosure
assignment, any subsequent  transferee has record notice that the
foreclosure is simply  void.

4. A wholly void foreclosure deed  passes no title even to a supposed
"bona fide  purchaser"

5. The Grantee of an invalid (wholly void)  foreclosure deed does not
have record title, nor does any person claiming under a wholly void deed,
and the decision of the lower land  court properly dismissed Bevilacqua's
petition.


6. The land court correctly reasoned that the remedy available to
Bevilacqua was not against the wrongly foreclosed homeowner but rather
against the wrongly foreclosing bank and/or  perhaps the servicer (depending on who
actually conducted the  foreclosure)

When  thinking about the implications of Bevilacqua – the importance of
point six cannot be overstated.

http://sherriequestioningall.blogspot.com/2011/10/calling-all-class-action-
lawyers-get.html_

(http://sherriequestioningall.blogspot.com/2011/10/calling-all-class-action-lawyers-get.html)

http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10880_(http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10880)

Francis J. BEVILACQUA, Third vs. Pablo  RODRIGUEZ.
SJC-10880.
May 2, 2011. - October 18, 2011.
Jurisdiction, Land Court. Land Court, Jurisdiction. Practice,  Civil,
Parties, Standing, Dismissal. Real Property, Ownership, Record  title,
Mortgage, Bona fide purchaser. Mortgage, Real estate,  Foreclosure, Assignment,
Equity of redemption.

CIVIL ACTION commenced in the Land Court Department on April 12,  2010.
The case was heard by Keith C. Long, J.
The Supreme Judicial Court granted an application for direct  appellate
review.
Jeffrey B. Loeb (David Glod with him) for the plaintiff.
Richard A. Oetheimer (Natalie F. Langlois with him) for Mortgage
Bankers Association.
Max Weinstein for WilmerHale Legal Services Center of Harvard Law
School...
John M. Stephan & Amber Anderson Villa, Assistant Attorneys  General,
for the Commonwealth.

The following submitted briefs for amici curiae:

Mark B. Johnson for American Land Title Association.
Adam J. Levitin, of the District of Columbia, Christopher L.  Peterson,
of Utah, John A.E. Pottow, of Michigan, Katherine  Porter, pro se.
Edward Rainen, Carrie B. Rainen, Ward P. Graham for  Massachusetts
Association of Bank Counsel, Inc.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, JJ.
SPINA, J.

_http://www.universalhub.com/2011/francis-j-bevilacqua-third-vs-pablo-rodriguez_

(http://www.universalhub.com/2011/francis-j-bevilacqua-third-vs-pablo-rodriguez)
-------------------------------------------------------------------------------------------------------------------------

Added story: 

CALIFORNIA BANKRUPTCY COURT HOLDS THAT MERS CANNOT TRANSFER NOTE FOR WANT OF OWNERSHIP; CITES BOYKO, LANDMARK (KANSAS), LAMY, AND VARGAS CASES

July 9, 2010

The United States Bankruptcy Court for the Eastern District of California has issued a ruling dated May 20, 2010 in the matter of In Re: Walker, Case No. 10-21656-E-11 which found that MERS could not, as a matter of law, have transferred the note to Citibank from the original lender, Bayrock Mortgage Corp. The Court’s opinion is headlined stating that MERS and Citibank are not the real parties in interest.

The court found that MERS acted “only as a nominee” for Bayrock under the Deed of Trust and there was no evidence that the note was transferred. The opinion also provides that “several courts have acknowledged that MERS is not the owner of the underlying note and therefore could not transfer the note, the beneficial interest in the deed of trust, or foreclose on the property secured by the deed”, citing the well-known cases of In Re Vargas (California Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of authority of MERS), LaSalle Bank v. Lamy (New York), and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court).

The opinion states: “Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.”

Read that again: “Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note IS VOID UNDER CALIFORNIA LAW.” This conclusion was based upon California law cited in the opinion that the note and the mortgage are inseparable, with the former being essential while the latter is “an incident”, and that an assignment of the note carries the mortgage with it, “while an assignment of the latter [the mortgage] alone is a nullity.” As MERS must own the note in order to assign the incident deed of trust, MERS is legally precluded from assigning the deed of trust for want of ownership of the note, and cannot assign the note in any event as it never owned it. MERS’ lack of ownership interest in promissory note is a matter of decided case law based on a record stipulation of MERS’ own lawyers in the MERS v. Nebraska Dept. of Finance decision.

This opinion thus serves as a legal basis to challenge any foreclosure in California based on a MERS assignment; to seek to void any MERS assignment of the Deed of Trust or the note to a third party for purposes of foreclosure; and should be sufficient for a borrower to not only obtain a TRO against a Trustee’s Sale, but also a Preliminary Injunction barring any sale pending any litigation filed by the borrower challenging a foreclosure based on a MERS assignment.

The Court concluded by stating: “Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case.” Thus, any foreclosing party which is not the original lender which purports to claim payment due under the note and the right to foreclose in California on the basis of a MERS assignment does not have the right to do so under the principles of this opinion.

This ruling is more than significant not only for California borrowers, but for borrowers nationwide, as this California court made it a point to cite non-bankruptcy cases as to the lack of authority of MERS in its opinion. Further, this opinion is consistent with the prior rulings of the Idaho and Nevada Bankruptcy courts on the same issue, that being the lack of authority for MERS to transfer the note as it never owned it (and cannot, per MERS’ own contract which provides that MERS agrees not to assert any rights to mortgage loans or properties mortgaged thereby).