Professional Documents
Culture Documents
Issac-Adisho V.orlans Part 1
Issac-Adisho V.orlans Part 1
Plaintiffs,
v
ORLANS AND ASSOCIATES, P.C., A Michigan Professional corporation, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE STRUCTURE ASSET SECURITIES CORPORATION MORTGAGE PASS-THOUGH CERTIFICATES, 2006-EQ1, a New York Common Law Trust, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware Corporation, Defendants. Ziyad Kased (P72237) Attorney for Plaintiffs 625 East Big Beaver Road, Suite 205 Troy, Michigan 48083 (248) 680-7300 Plunkett Cooney Matthew J. Boettcher (P40929) Patrick C. Lannen (P73031) Attorneys for U.S. Bank and MERS 38505 Woodward Ave., Suite 205 Bloomfield Hills, MI, 48304 (248) 901-4035/4027 ORLANS ASSOCIATES, P.C. Kristina E. Janssens Attorney for Orlans 1650 West Big Beaver Road Troy, MI, 48084 (248) 502-1580
PLAINTIFFS' BIUEF IN OPPOSITION TO DEFENDANT ORLANS ASSOCIATES, P.C's MOTION FOR SlJMl\IlARYJUDGMENT
Plaintiffs executed a unique purported mortgage, never seen before the creation ofMERS
in which the mortgagee is MERS but MERS is not the Lender on the Promissory Note.
The
Lender in this mortgage is Equifirst. The mortgage the Plaintiffs signed was what is referred to by MERS and its members as a ""MOM" mortgage. MOM stands for Mers as Original Mortgagee. Before Defendant Orlans drafted this Motion to Dismiss pursuant to MCR 2.116 (C)(8), the Michigan Court of Appeals ruled on these MERS' MOM mortgages after carefully analyzing the language in the mortgage documents themselves. The Court of Appeals ruled that
auv Mortgage nanling MERS as the Mortgagee in which the Mortgage was foreclosed by
advertisement is "void ab initio," Residential Funding, Co.LLC vs. Saurman, ---N.W.2D- - (2011); 2011 Further, MERS has acknowledged to the Congressional Oversight Panel dealing with fraudulent documentation in the foreclosure process that it is familiar with the crisis and has in fact admitted that it has learned that its so-called "certifying officers" have been pressured by MERS members to perform activities not allowed by law or by the MERS Rules. M. Issacs' . Exhibit 10 attached to his transcript. The MERS Rules require that a candidate for a MERS certifying officer (i.e. an Assistant Secretary and Assistant Vice President) must be an officer ora member. They must have a basic
understanding of the MERS model and be trained by the Member in how to perform their duties as certifying officers. They also must pass
all
was never an officer of the Lender in this case, EquiFirst Corporation and is, upon information and belief, not an officer of U.S. BANK NATIONAL ASSOCIATION, THE STRUCTURE ASSET SECURITIES CORPORATION AS TRUSTEE FOR PASS-
MORTGAGE
THOUGH CERTIFICATES,
MERS to U.S. BANK (as Trustee) in this case. MERS has also recently entered into a settlement agreement with several federal regulators in which it was found that MERS was engaged in harmful practices and one of the areas addressed is the role and actions ofMERS Certifying Officers
r
"The agencies have found identified certain deficiencies and unsafe or unsound
practices by MERSCORP, Inc. (MERSCORP) and its wholly owned subsidiary Mortgage Electronic Registration Systems, Inc. (MERS) ... " Isaacs Exhibit 12 attached to his transcript. The specific settlement agreement between the Federal Regulators and MERS addresses specifically Certifying Officers. Exhibit 12 at Article 13, pages 13 through 14. STANDARD OF REVIEW MCR 2.1 16(C)(8) states that an action may be dismissed if the complaint fails to state a claim upon which relief can be granted. Id. See also ABB PAINT FINISHING UNION FIRE INSURANCE COMPANY OF PITTSBURGH INC v. NATIONAL
Docket Number 192855, and May 16, 1997. A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Maiden v. Rosewood, 461 Mich. 109 (1999). All factualllegations in the complaint must be presumed to be true, and reasonable inferences must be construed in a light most favorable to the non-moving party. See KUZ11Gr v. Raksha Corp., 481 Mich. 169, 176; 750 N.W.2d 121 (2008) and Wade v. Dep't. a/Corrections, 439 Mich. 158, 162 (1992). A
motion under MCR 2.116(C)(8) may only be granted where the claims alleged are clearly unenforceable as a matter of law and no [actual developmellt could justify recovery. See Kuzna, supra and Wade, supra. at 163. See also Int'l Brotherhood of Electrical Workers, Local 58 v. JvfcNulty, 214 Mich.App. 437,443-444,543 N.W.2d 25 (1995). When deciding a motion
brought under this section, a Court considers only the pleadings. MeR 2.116(G)(5). However, in actions based on contract, the Court may examine the writing in conjunction with the motion.
Second Bent Harbor. v. St. Paul Title Ins. Co., 126 Mich. App. 580 (1983). Where a motion is brought under MCR 2.1 16(C)(8), the trial court should liberally permit the parties to amend their pleadings unless amendment "would not be justified. " MCR 2.116(I)(5).
PLAINTIFFS'
RESPONSE
Here, the Plaintiffs do not simply rest on their challenged pleading, but rather will file a motion within two weeks from today's date for Leave of this Court to Amend their Complaint. This is necessitated not only by Defendant Orlans' Motion but also because of a change in the law in the State of Michigan affecting all MERS' mortgages and because of the deposition of Marshal Isaacs taken by Plaintiffs' attorney in another similar case in which Marshall Isaacs executed an Assignment as an Assistant Secretary and Vice President ofMERS. See and compare Isaacs Exhibits 3 and 5 attached to his Transcript. In that case, Eaman Shina et al. vs. Federal National Mortgage Association et al, Oakland County Circuit Court Case No. 10107260-CK assigned to the Honorable Judge Rae Lee Chabot, a deposition was conducted but thwarted by Defendants. Plaintiffs attach the transcript and Exhibits as part of this Motion to show that amendment of their Complaint is justified and will supply factual information and specific details not contained in their challenged pleading.
PLAINTIFFS
WERE CERTAINLY
Orlans uses sleight of hand to say that " ... it is clear that Orlans Associates, P.C. is a lawfirm retained to handle the foreclosure and oversee the redemption." First, the MERSCORP INC. Rules of Membership, specifically Rule 3, Section 3 (a) permits only Officers of its Members to serve as its "certifying officers", specifically as its "Assistant Secretaries and Vice Presidents."
See Isaacs Transcript at page 15, Line 22 through page 19, Line 12. See also Exhibit 7 attached to Isaacs' transcript. Also see Rule 10 of Exhibit This concept and Rule that wIERS certifying officers (its Assistant Secretaries and Vice Presidents) was recently reiterated by R.K. on November 18,2010 in his testimony as President and CEO of both MERSCORP, INC. "and its subsidiary, Mortgage Electronic Registration Systems, Inc." Isaacs Exhibit 8 at page 5. "'MERS has specific controls over who can be identified by its members as a certifying officer. To be a MERS certifying officer, one must be a company officer ofthe member institution, have basic knowledge ofMERS, and pass a certifying examination administered by MERS.n Isaacs Exhibit 8 at 13. See also Transcript at page 20, Line 7 through page 23, Line 10.
Mr. Arnold also testified that "Earlier this year, when we became aware of acceleration ill tile
foreclosure document processing, we grew concerned that some certifying officers might have ill a manner inconsistent witiz Ollr Rules."
Isaacs Transcript at page 23, linesll through 18. See Exhibit 8 at page 3. Arnold continued his congressional testimony: "When we discovered that some so-called robe-signers were MERS certifying officers, we suspended their authority until they could be retrained and retested. Isaacs Transcript at page 23, Lines 11 through 25. Arnold also testified about certified officers being "the same officers whom the lenders and servicers use to carry out these functions even when MERS is not the mortgagee. Exhibit 8, at page 12. Also see Exhibit 8 page 42 through 44 which Mr. Arnolds answer to a question he was asked to answer, specifically, How does one become a Vice President andlor Assistant Secretary ofMERS? What Compensation do they receive?
[.
Approximately how many Vice Presidents and/or Assistant Secretaries does MERS have? What is MERS policy on conflicts of interest regarding Vice Presidents and/or Assistant Secretaries
interests in a
Officers conduct much of the business of Mortgage are employees and officers ofMERS Registration Systems,
Isaacs Exhibit 8 at 42. See also pages 42 and 43 for the rest of this testimony. 44, Arnold testified that "[ a]s of November
work with the more than 31 million active loans registered a Report of the Congressional mortgage Admissions foreclosure
the
documentation
scandal. It speaks of robo-signing and contractors "testified that they signed, and in of facts about
of document
that they did not actually know to be true. Exhibit On pages 16 through 22, the Report specifically in the securitization
in
in the
crisis and also the role ofMERS 11 is the recent Michigan -N.W.2D-
problems
tbese foreclosures
each assignment
original lender.
was whether
MERS is an entity that qualifies under MeL on the subject properties or ifit must instead seek by
by Michigan's
by Advertisement
Court to be void.) The Residential Funding Court analyzed the type of mortgage in tins case. and note in each case and the
Each note provided for the amount of the loan, the interest rate, methods and requirements of repayment, the identity of the lender and borrower and the like. The mortgage instrument provided for rights of foreclosure of the property by the mortgagee in the event of default on the loan. The lender, though named as the lender in the mortgage security instrument, was not designated therein as the mortgagee. Instead, the mortgage stated that the Mortgage Electronic Registration Systems, Inc ("MERS") "is the mortgagee under this Security Instrument" and it contained several provisions addressing the relationship between MERS and the lender including: "MERS" is Mortgage Electronic Registration Systems Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the mortgagee under this Security Instrument. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, warrant, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns ofMERS, with the power of sale, the following described property .... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument. This language is idelltical to the Mortgage MERS itself as a MOM mortgage in the case at bar. Tills is commonly referred to by
***
Residential Funding noted: The record evidence establishes that MERS owned neither the notes, nor an interest, legal share, or right in the notes. The only interest MERS possessed was in the properties through the mortgages. Given that the notes and mortgages are separate [page 5] documents, evidencing separate obligations and interests, MERS' interest in the mortgage did not give it an interest in the debt
Ie!. at 5 & 6.
MERS cannot assign a mortgage without assigning the Note and it cannot assign the Note. The United States Supreme Court held long ago that: "The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Carpenter v. Logan, 83 U.S. 271, 274 (1872). Applying Residential Funding to the case at bar, it is clear that MERS cannot assign something it does not have. It cannot assign a Note because the Court of Appeals ruled that ..... MERS owned neither the notes, nor an interest, legal share, or right in the notes. The only interest MERS possessed was in the properties through the mortgages. Given that the notes and mortgages are separate [page 5] documents, evidencing separate obligations and interests, MERS' interest in the mortgage did not give it an interest in the debt."Id Wherefore, Plaintiffs ask this court to permit them to amend their complaint within two (2) weeks from today's date.
/1/ ~/J__
Ziyad iased (P72237) Attorney for Plaintiffs 625 East Big Beaver Road, Suite 205 Troy, Michigan 48083 (248) 680-7300
2 3
4
5 6 7
8
FARIS
SHINA,
Plaintiffs,
VS.
ASSOCIATION LP, a
Foreign Corporation,
Defendants.
of MARSHALL ISAACS,
Taken at 1650 West Big Beaver Road, Troy, Michigan,. at 1:57 p.m.,
Commencing
6J.~}~r~(t!§IQ;~IS
;'11.\'·lv,lir!ml~n:::;l(JeLr:tifn
APPEARANCES:
3 4 5
ZIYAD KASED 625 East Big Beaver Suite 205 Troy, Michigan 248.680.7300 Appearing on behalf of the Plaintiffs. 48083 Road
6
7
8
9
10
11
MICHELLE Bodman,
T. THOMAS
PLC
12
13 14 15 16 17
18
19 20 21 22 23 24 25
TIMOTHY B. MYERS
Orlans Associates, P.C.
1650 West Big Beaver Road Troy, Michigan 248.502.1362 Appearing on behalf of Marshall Isaacs. 48084
6J..~J~~,~~I9S;,tS
l".'ln\:hi r.nun 'l1(ICk.t~tltn
TABLE OF CONTENTS
Page ISAACS
MARSHALL
6
7
8
9
EXHIBITS
10 11 Exhibit
Page
12 13
14 15 16 17 18 (Exhibits attached to transcript.)
1 2 3 4
5 5
5
5 5 5
5
19
20 21 22 23
5 6
7
8 9
5
5
24
25
10 11
5
5
0I§;'~~1~~I9;~,!~
·.·.'1.'\."VI,·.hir:nl:n=.lnd:xJHn
Page 4
MARSHALL ISAACS May 13, 2011
1
e:
5 5 5 5
'1
3
4
5
6
7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
~I§t£§l~~rQS~IS
;,nn"-',hif;n'~n~IClr:k.~:ljrn
MARSHALL ISAACS, was thereupon called as a witness herein, and after having first been duly sworn to testify to the truth, the whole truth and nothing but the truth, was examined and testified as follows: MARKED FOR IDENTIFICATION: DEPOSITION EXHIBITS 1-15 1:57 p.m. MR. KASED: Let the record reflect this is
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KASED:
the deposition of Marshall Isaacs as assistant secretary and vice president of Mortgage Electronic Registration Systems, Inc., taken pursuant to order of the court after a motion for protective order was sought. This deposition is being taken for any and all purposes authorized by the Michigan Court Rules. This case is in the Circuit Court for Oakland County, case number 10-107260-CK. Rae Lee Chabot. EXAMINATION It's in front of Judge
~IENENSTOCI(
:-':_J-:rJOt..JWIUl;
em 'In
\:It)W)
Q. A. Q.
Good afternoon, Mr. Isaacs. Hello. I know that you're an attorney. participated Have you, yourself,
A. Q.
I have testified at depositions, yes. Okay. Did it involve Mortgage Electronic Registration
Systems, do you recall? A. Q. No. I understand that you're familiar with depositions, but I'm just going to go over a few ground rules so the record in this case is clear. reporter sitting next to you. There is a court
10 11 12 13
14
word that you or I or either of the attorneys sitting here says. To make her job easier and for record
15 16 17 18 19 20 21 22 23 24 25
clarity, I'll ask that you do not speak while I'm speaking, and I'll do my best to not speak while you're speaking_ I'm going to ask you some questions. you don't understand If
the questions, let me know and If you don't know the If you
need to go to the restroom or if you need a break for any reason, let me know and we'll accommodate that. I
just ask that if there is a question pending, I'd like the question answered before we take a break.
~ f.%1i&J3r§J;:Q;~IS
',n.... "'w.bif:I1!!n"lI(II:k.l:JJIrI
Page 7
MARSHALL ISAACS
Mr. Isaacs, are you under the influence of any medication for any condition that might affect
3 4 5
6
A.
Q.
No. Mr. Isaacs, you are a vice president and assistant secretary of Mortgage Electronic Registration Systems; correct?
7 8
9
rl
Through signed documents, yes, I was given that title. And hereinafter, I'm just going to refer to them as Do you know since when you held
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q.
A.
I believe the authority for me to sign documents was given in 2009 for BAC.
Q.
And MERS is a nationwide company; correct? I don't know. Do you know on about how many mortgages they're listed as mortgagee?
A.
Q.
A.
Q.
THOIvlAS: abjection.
the four topics that is listed in the Order that we're going to -- as topics for deposition today. MR. RASED: MR. MYERS: Noted. I would join in that objection.
~!.;§tl~~'§IQ~!S
h,,\,,"w.hir~m:n;lnd~.r:rjm
1
2 3 4 5 6
7
And, step
in fact and
-- in fact,
to take
instruct that
my witness
to answer Judge
are outside
of what
Chabot
and what my witness is in accordance outlines, clear that with and the
Judge March
specifically is quite
2011 order
8
9
are entitled
to depose
Marshall only,
topics
10 11 12 13
with
MERS,
MERS
corporate as an and
resolution assistant
to sign
documents
14
15 16 17 18 19 20 21 22 23 24
and vice
president
of MERS, 3rd,
of Mortgage on January
dated
January
2010,
20th,
of that,
Counsel,
not going
to be answering
if he can describe
does.
instructing
the scope
25
~I§I~tI§J:Q;~t*,S
;~.",n'd~il;nj~n,t.I.nt:k.r:fJI[l
MARSHALL
May 1 2 3 13,
ISAACS
2011 MR. MS. instruction, KASED: THOMAS: Okay. And
I would
Page 9
be joining
in that
as well.
4
5 6 7 8 9 10 11
BY MR. KASED: Q.
How did president you become of MERS? of getting I guess, authority to get so MERS, to the assignments prepared and executed of -to the varlOUS -- signed signing an assistant secretary and vice
A.
facilitated by HERS
the -- sign some mortgage along various with BAC, law firms granted
12 13 14 15 16
17
foreclosures assignments.
so that
they could,
basically,
Q.
fill
out
an application?
A.
Q. A. Q.
any
training?
18 19 20 21 22 23 24 25
cards
that
show
that youJre
president
assistant
secretary
of MERS?
A.
Q.
A.
Q.
No.
Do you attend No. any meetings? MERS meetings?
A.
gIENENSTOCI(
:\!,':':l'IflNWILHi COl
w,,\\,\·.hf l:nj:n:=:tDd~. om c
rUJEO
Page MARSHALL ISAACS May 13, 2011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q. A. Q. Do you report to anyone at MERS?
10
A.
Q.
No.
Do you recall who asked you to accept that position?
A.
Q.
No.
r'm going exhibits direct to place that your were in front labeled of you, Mr. Exhibits Isaacs, I'll
1, 2 and 3.
attention
to Exhibit Authority.
For Signing
A.
This
be the agreement
that MERS
gave
to allow behalf.
me
-- assignments document
on their today?
before
Q.
Resolution;
correct?
16
17 18
A.
Q.
Yes. Have Yes, And it's you seen this document before today?
A.
Q.
19
20 21 22
concerning
the plaintiffs
in this case,
Ms. Shina;
correct?
A.
Q.
23 24
25
A.
Q.
And you
0I§,I:iJ§,~§IQ;~,~~
www .hl r.nnn
1:..1 nr-l..cr
.m
Page
11
MARSHALL
May 1 2 3 13,
A.
Q.
Yes, And
I did.
4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
that
assignment
was prepared
and
drafted correct?
by you as
for Orlans
& Associates;
was
and
notarized
by a
notary A. Q. No.
on January
I signed
That's Oh,
what
A.
Q.
recollection
of what happened
A. Q.
No. And the before effective January3rd, date of the assignment 2010; correct? is on or
A.
Q.
Yes. And is there Just above a date by your signature? below it there is. for
A.
Q.
it there
So this Orlans
document
& Associates,
secretary resolution;
assistant corporate
to a
A.
Q.
~n~~R1~§,I.Q;~I5
~n\"l..\'+11rr:nlm;lni~k.c:l,rn
Page
12
MARSHALL
May 13,
ISAACS
2011 as Exhibit 2; correct?
1
2 3 4 5 6
7
A.
Q.
Yes. Can you explain how an assignment and notarized the date of a mortgage on January that
by you
3rd, become
on or before
it is actually
A.
Q.
I donlt Okay.
understand
your question. was signed the effective by you and notarized date says, on or
8
9
on January before
10 11 12 13 14 15 A.
January
the date
and notarized? is nothing to the world transferred. more that than a document
interest
has been
Mortgage
to the recording
assignment
This
document Mr.
in this case,
A. Q.
at all?
it before?
24
25
A.
Q.
look
is the
~I.§!t[R!tI§lrg;~I~S
;·.'"\\"'w.bi[~nl!n;lnd~.t:Jjm
13
1 2
3 4 5 6
7
MERS
to BAC
Horne Loan
Servicing?
A.
Q.
5.
THOMAS: I'm going to object to any
regarding that's
5.
This
in the Order
B.
is an assignment to this,
8
9
so I would
regarding deposition
10 11 12
13 14
to answer
any questions
according
I would
join
KASED:
15 16 17
18
Counsel questions
has
instructed
not to answer
regarding
Exhibit
5.
BY MR. KASED: Q.
Mr. Isaacs, regarding case, when Exhibit 3, the assignment of the was
19 20 21 22 23
24 25
n.
'1\
if the notary
this?
Q.
specific
recollection
of signing
the
A.
Q.
No.
Mr. Isaacs, are you aware of the term robo-sign?
~I~,Ii&~~I:Q;~,!~
t',"\"'\\'<lllrml~n:;tnd~>r;rJm
14
1
2 3 4 not one and
MS. of the
That is Order,
instruct
Mr.
5
6 7 8 9
Q.
To your of its
knowledge, affiliates
does ever
of America
or any
Objection. underneath
the Court's
10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.
Isaacs
I would
Do you recognize
this document,
A.
Q.
I don't
Go ahead. It's And, the note so, would executed that by Eaman Shina. is secured by
A.
Q.
the mortgage
identified
A.
Q.
Yes. Turn your' attention only back to Exhibit 3 for a second. correct? the note to
is that with
states:
So is there
~J.}2~ert!r.§lI.Q;~I~S
",,,\,,~·.bi~~1 H!nslDr.k.r!J' nn
Page
15
MARSHALL ISAACS
May 13, 2011 There Can is. read it to me? the note to which the same is
1
2 3 4 5
6
A.
Q.
you
A.
"Together
with
collateral." Q. Do you know if MERS note? MS. THOMAS: the topics instruct underneath Isaacs Objection. the Court That's not one of has any interest in that
promissory
7
8 9
Order.
I would
Mr.
MR. MYERS:
if I told promissory
MERS
in
which
6, would note
14 15 16
17
that MERS
cannot
assign
the promissory
as you
3?
Objection. by the Court's That's Order. not one of I
authorized Isaacs
18
19 20 21 22 23
Mr.
of speculation.
BY MR. KASED: Q. Okay. Exhibit 7. Can you tell me what that document
is titled,
Mr. Isaacs? Inc. Rules of Membership. you've surely seen this before;
24 25
A.
Q.
MERSCORP, And
as a VP of MERS,
~I§,~§t~~IQ.~I~
;.n1."'\'I.".hi,:III:-n"ilnd:.C/lm
Page
16
MARSHALL
May
1
13,
ISAACS 2011 correct? MS. membership Court's THOMAS: I'm going to object. authorized Mr. Isaacs Rules of
3
4 5 6
is not
a deposition
topic
by the not
Order.
I'm going
to instruct
7
8 9 10
BY MR. KASED:
Q. Mr. Isaacs, can you turn to page page?
15 of thisr
3, under
which Rule 3,
would
Section
for me?
11
12 13 14
or to myself? record. 3 (a): Ou~ loud, Upon please. from the member, Systems, Inc. shall
A.
request
Electronic furnish
Registration
15 16 17 18 19
20 21 22 23
to the member
in accordance designating
with one or
procedures more
a corporate
resolution
officers
selected
by such member
of Mortgage Inc.,
to permit
the lien
of any mortgage
to such member. (ii), assign the lien when of any mortgage the member is also
naming
MERS
24 25
note-holder, system,
on the MERS
~IB:.l~&l~~§IQ~~,~S
Wi.\"1.\o<lli
1;1l1~r..:;lnd:,I~rJrn
Page MARSHALL ISAACS May 13, 2011 1 2 3 4 securing system registered to the member. (iii), to foreclose loan upon the property on the MERS
17
registered
5
6
7
(iv), to take any to protect beneficial proceeding system that the interest
necessary
owner
of a mortgage a loan
in any bankruptcy on the MERS to the member. as may be obligations loans, from the to a
8
9
regarding is shown
registered
to be registered actions
10 11 necessary
such member
servicing
12
13 14 15 16 17
owner loans
system
as a result
of the transfer
thereof
nonmember. (vi), to take action necessary finance, registered documents, refinancer and execute necessary all to loan
18
19
any mortgage
system
20
21
endorse
checks
that
22
23 24
25
designates
an officer
or a member
~I~t{%l~,§IQ;~IIS
\'\'\\."\\·.ll~l:nl!r.;IIlr.k.r::jln
18
1
2 3
officer above,
of MERS
for
the
limited indemnify
such member
shall
directors,
officers,
4
5 6 7 8 9 10 11 12 Q.
all loss,
liability
"they taken
as a result
certifying
officer."
Thank Now,
in the third
starting "corporate
on section resolution
3, it specifically designating
refers
one or more
selected
by such member,
as certifying
13 14
15 16 17 18 19 that's Mr.
A. Q.
Yes. Are you an officer MS. listed not of BAC Home Loan Servicing? That's not a topic instruct
THOMAS:
Objection. Order.
I would
Isaacs
MR. MYERS:
I join.
20
21 22
BY MR. KASED:
Q. Are you employed by BAC? Objection. history history You can depose with MERS. that you're to the Court's
23
24 25
employment employment
There's allowed
no other to depose
~I§'Ji§tl§IIQ~J~S
wwwhlnnunstock.cnm
Page
19
MARSHALL
May 13,
ISAACS
2011 Order. answer. MR. MYERS; I join. I'm going to instruct Mr. Isaacs not to
1
2 3
4
5 6 7 8 9
BY MR. KASED:
Q.
Mr.
Isaacs, that
do you
rules
authorizes officers
resolutions
certifying firms
Objection. Order.
not one of to
10 11 12
13
Mr.
not to answer.
I join.
14
15 16
read a very
specific
limited rules."
powers
of certified
officers
within
17
18 19
these
to those 2?
listed feel
in free
in Exhibit
And
your time. MR. MYERS: I'm going to object to the I'm not don't. made the
20 21
22 23 24 objection Mr. Isaacs question. sure
I think
it's vague
the witness
understands.
And we've
7 and we've
25
any questions
~I~tipa~§I.9~~,!S
w'\,'\\".bi[:n'!nGlnr.k.r:rltrt
Page MARSHALL May 13, 1 2 3 ISAACS 2011 Exhibit the 7 because Order Isaacs MR. answer it's not within as topics on. Are you instructing him not to that the topics listed to ln
20
Court's Mr.
depose
4
5 6
KASED:
7
8 9 10 11 12
BY MR. KASED:
Q.
Exhibit document
8.
Mr.
Isaacs,
can you
tell me what
this
A.
It's
entitled,
President
and CEO
of MERSCORP,
on Housing Services
13 14
15 16 17 18
Financial
Q.
Have
you
ever
seen
this document
before?
A.
Q.
I have Do you
A.
According Inc.
to this,
he's president
19
20 21 22 23 Q.
Have No.
you
heard
of him before
today?
A.
Q.
Do you
know
between
MERS
That's
24 25
authorized Isaacs
Order.
Mr.
not to answer.
0JJ2~1i.§,I.Q~rtS.
","''\yw.bll~n-E~n~lnr:k.~:nlT1
Page May
21
BY MR. KASED: Q.
Page 2 of Exhibit read that
8t
the second
can you
A.
"One
thing
that
is always
is that
defaults
If MERS
7
8 9
foreclosures
can occur
in two ways:
MERS mortgage
records initiates action
interest
is reassigned holding
10 11 12 13 14
15
records.
relies
To be a MERS of the
be an officer
16 17 18
19 20 21
institution
these
MERS.
loan.file MERS
it did before
MERS.
22
23
for mortgage
documents
or promissory
24
25
Q.
Thank
0n~~B(tJ,~lrQ;~IS
\\,,,\I,,,· ..
~.llip.nnn:'lad~.':rJm
MERS testified under oath to Congress that to be a MERS certifying officer, one must be an officer of the who's familiar with the functions
and who has passed an examination Have you taken any examination
by MERS. by MERS?
MS. THOMAS:
Objection.
There is no -- the
Court Order does not authorize testimony on that topic. I would instruct Mr. Isaacs not to answer. MR. MYERS:
I
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
wound join.
add that I believe you're misconstruing Page 42 specifically and extrapolates president
think
this is far outside the scope of what Judge Chabot's Order addresses. BY MR. KASED: Q. Mr. Arnold testified that, "The certifying officers are the same individuals who would handle the foreclosure if the lender was involved without MERS. The loan file remains with the servicer as it did before MERS.n Do you remember, when you executed the assignment in Exhibit 3, did you have the loan file? MR. MYERS: I'm going to object. This has
0J..§ljBJi§IQ;~IS
;·r"!'\,,"'\\·_bif~JH!ni'iIGd:..r:rJrn
file when he signed the assignment. THE WITNESS: MR. KASED: the question? MR. MYERS: answer the question. If you recall. If you can Do I answer? Is that a no? Can he answer
5
6 7
8
A.
10 11 12 13 14 15 16 17 18 19 20 21
22
BY MR. KASED: Q. Page 3 of Exhibit 8, Mr. Isaacs, can you read the second paragraph into the record? A. "Earlier this year, when we became aware of acceleration in the foreclosure document processing,
we grew concerned that some certifying officers might have been pressured to perform their responsibilities in a manner inconsistent with our rules. When we did
not get the assurances that we thought were appropriate to keep this from happening, we suspended our relationships with those companies. When we discovered that some so-called robo-signers were MERS certifying officers, we suspended their authority until they could be retrained and retested. We are asking our members to
23 24
25
6I.§!:i&1~§lI9;~I!S
·,.. . ·w'\"-·.hir;nnr.r.lm:L:.r.rJm
Page MARSHALL May 13, 1 2 3 4 Q. ISAACS 2011 provide intend Thank us with to prevent you. And first two one more thing on page specific plans outlining in the how they
24
such actions
future."
5
6
A.
"MERS has
7 8
9
officer. be a company
officer,
institution,
basic
kriowl.edqe
of ['1ERS by
10 11 12 13 14 15 16 17 18 19 20 21 22
23 24
a certified
examination
administered
Q.
And
I have
attempted
to ask you
if you've by MERS,
which
not to answer.
A.
A MOM?
MS. the topics Mr. Isaacs that THOMAS: Objection. That's not one of
authorized
to testify
I would
instruct
not to answer.
BY MR. KASED:
Q. Do you know what MS. a topic that's a MIN number is? MIN number Order. is not I would
THOMAS: authorized
Objection.
25
by the Court
~I~J:~I%(~§,IQ;~,!S
www.hinnenstock.cnrn
25
1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
Mr.
Isaacs
not to answer.
Q.
Back
to Exhibit towards
4r
Mr. Isaacs.
number
A.
Q.
Yes. Do you have any idea number why that was not particular included 3? offhand. in the
identification assignment
Exhibit
A.
I can
only
so I don't
know
Probably
because
to instruct testify
the
cannot
here
honestlYr know
stopped
of during
as is routinely
and that
-- as witnesses
17
18
advised,
the answer
knowr
I don't
19
20 21 22 23 24 25
rememberr answers.
I don't
generally
accepted
rules
I believe
I told
Mr.
Isaacs
know
an answer,
he could
answer
I don't
0I§,ti§Jl~f[9;~IS
www.biennnxtouk.cnm
May 13, 1 2
3 4
2011
MR. MYERS: Fair enough.
A.
I don1t
know.
BY MR. KASED:
Q.
Okay.
Fair
enough. Do you MS. know the purpose Objection. of the MIN MIN numbers Order. number? are I would
5
6 7 not a topic instruct BY l'1R. KASED: Q. MrIsaacs,
THOMAS:
authorized Isaacs
by the Court1s
8
9
Mr.
not to answer.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
do you MS.
know what
a milestone
report
is?
Objection.
Milestone Order.
reports
I
is not would
a topic instruct
Isaacs
16 of Exhibit
8, can you
just
read
the first
two
A.
it became
in Florida
excessively forbidding
affidavits. note
a rule
when
foreclosures That
were was
in the name
in Florida.
rule
in 2006, --
and is still
in effect
it.
all.
A.
I'm sorry.
0!'§t[~rti§J:Q~J!S
\\-~\'"\\·.birmlm:;lfld:.!:rJm
Q.
Thank
you.
doesn't
go against
corporate
resolution
A. Q.
5
6 7
I don't Okay.
understand In your
corporate
authorized correct?
A.
to execute
8 9
It does
state that those can be signed, Yet the president oath that MERS
yes. to
10
11
Q.
under
12
13
the use of lost note affidavits. MS. THOMAS: Objection. Lost note by the Court's
14
15 16 17 18 19 20 21 22 23 24
25
is not a subject
Mr.
authorized Isaacs
not to answer
MR. MYERS:
BY MR. KASED: Q.
would
join.
Okay. read,
Exhibit
9.
I know that's
to
Mr. Isaacs.
t"lERSv.Jebsite that lists all the active tJ!ERS members. I've printed to read, anywhere? the as, and I know it's a little bit hard Associates
A.
6I~~Fa~§,IQ;~,*S
www.hlnnnnsmnk.cnrn
Page 28
MARSHALL
May 1 2 3 4 5
6
ISAACS
2011 Exhibit dated 10. Mr. Isaacs, 2010. this is the oversight Have you ever seen report this
13,
Q.
November
16,
document? A. Q. No. Were you aware that Congress became aware that testified
at Bank signed
of America and,
and others
had
7 8
9
thousands
personal This
Objection.
10 11 12
topic
authorized Mr.
the Court's
Order.
instruct
Isaacs MYERS:
13 14
15
lack of knowledge
regarding
of foundation.
BY MR. KASED: Q. Mr. Isaacs, page 4 of exhibit for 10, can you read the
16 17
18 19 20
first
paragraph
10 is a part
21
22
contents
the
as the And if
pages
in this,
for themselves.
a specific to object
question
regarding
to anything
regarding
~I.§it!&.l~§Ir.Q ~!S
www.binnnnsrcnk.rnm
has indicated
no knowledge scope
3 4 5
6
MR. KASED:
record.
"In the fall of 2010, reports surface alleging that companies servicing
began
to
7 8
9
in American
mortgages
legally"
10 11 12 13 14 15 16 17 18
19
legally
Employees
or contractors
GMAC mortgage
of documents
personal
about mortgages
know
Exhibit Court
11.
Exhibit involving
of Appeals
20
21
that,
by advertisement in Michigan
Michigan, by HERS"
and that any MERS foreclosures -- "by advertisement Are you familiar
22 23 24 25
A.
Q.
0I~,~§,ti§rg;~IS
www.hfnuunstuck.cnm
Page 30
MARSHALL ISAACS
A.
Q.
that MERS has the authority to assign a mortgage? MR. MYERS: Objection. This recent case is
not one of the topics authorized by the Court's Order. I would instruct Mr. Isaacs not to answer.
7
8 9
BY MR. KASED:
Q. Would you agree that the courtr in this case, ruled
that MERS has no interest in the note or the debt? MS. THOMAS: Objection. The recent I
10 11 12 13
settlement opinion is outside of the Court's order. would object -- I would instruct Mr. Isaacs not to answer.
14
15 16 17 18 19 20 21 22 23 24 25
BY MR. KASED:
Q. Exhibit 12. Have you ever seen this document before?
A.
Q.
No.
This is a Consent Order entered into recently with MERS and various Federal regulators. About seven
lines down, on page 2, and I'll read it for the record: "The agencies have identified certain
deficiencies and unsafe or unsound practices by MERS and MERSCORP that present financial operational compliance, legal and reputational risk to MERSCORP and MERS and to the participating members. Members
0n~a:;r~1t!§IQ~IS
t'_!,\,"'1.\·.llif:l1l:n~;n.r,k ..r:nm
Page
31
MARSHALL ISAACS
May 1 2 3 4 5
6 7
membership.
I,
Now, if we go to the next officers. you want me to read it for the page, under
Article
record? MR. MR. MERS shall MYERS: KASED: That's "In the all right. of this order,
8
9
60 days a plan
prepare
and submit
10 11
to strengthen to MERS
12
13
members. to:
include,
but not be
14
15 16 17 18
19
as authorized
and
that
only such
individuals
processes
to
officers
to ensure
compliance
with
20 21 22 23
24
and related
register acting
third-party
MERS
who are
policies,
25
ensure
the
adequacy
and appropriateness
of training
~l~J:iB,~'§I.Q;~,~S
\'l.... vw.bl nnnnsturk
..rnm
for certifying
officers. processes, comply and resources with the MERS 2011-01." and and third a to
2
3
members
4
5 6 7 8 9
Membership
Rule 8 and MERS Announcement And, "(f), policies, that examined and accurately designated processes members
determine
to act as authorized
MERS certifying
10 11 12 13
14
else is outside
15
16
Order.
I am going to instruct
17 18
19
I would
join.
Mr. Isaacs,
Roughten
is?
20 21 22
23 24 25
A.
the corporate
I believe.
Q. A.
Q.
Rise is?
A.
~I;§J:i§ltfr§,IQS~I!~
l\·\'".. ·w.hll:l1l!n:'i-Eud:.[:fJfn ·
Page 34
MARSHALL ISAACS
May 1
2
13, A. Q.
2011 We do not When you send them to MERS. this assignment, do you
prepared
and executed
3 4 5
6 7
recall
who
instructed would
A. Q.
The And
was done
foreclose rather
on plaintiff's in MER8'
property
than
name;
correct?
8 9 10 11 12 13 14 15
A.
Q. A.
that
is correct. type of mortgage question. rate, fixed rate, that's fine. this was?
your
Q.
as an adjustable And
know, no.
So the BAC;
assignment
under
instruction
from
correct?
16
17 18 19 20 21
A.
Q.
Yes. Does the phrase, Clues System, mean anything Clues Order. to you? is to
MS. THOMAS: outside instruct BY MR. Y~SED: Q. Do you know what the scope Mr.
Objection.
System
of the Court's
I'm going
Isaacs
not to answer.
22 23
24 25
the term
soft market
means? of a Order.
instruct
Isaacs
not to answer.
0n~a:~£a~§rQ;~IS
'r,"\n\'.hlf;nlm:,tr~r;k.r.rJm
Page MARSHALL ISAACS May 13, 2011 1 2 BY MR. KASED: Q. Do you to? MS. is outside instruct BY MR. KASED: Q. Mr. Isaacs, going back to the mortgage, 4, can you tell which I the THOMAS: scope Objection. Fast and easy Order. loan know what the term fast and easy loan refers
35
3
4 5 6 7 8
9
I would
Mr.
Isaacs
believe was
is Exhibit
10
11
on this
A.
Q.
12 13
14 15 16
A.
Q.
Countrywide be around
merged 2008.
with
Bank
of America. or you
would know?
Is that
correct
17 18
19 20
A.
Q.
after
was executed;
correct?
A.
Q.
About
21
22 23 24 25
foreclosure
was
for MS.
~I§~li§,IQ~IS
\\'l.\"'w.l}tnJllln;lnr.k.l:t;fn
36
Mr. BY MR. Q.
Isaacs
not
to answer.
Do you a MERS
since
you became
a MERS
That's
instruct
7 8
9
Isaacs
not to answer.
Going and
10 11 12 13
who prepared
you both
assignment?
A.
Q. A. Q.
14
15
16 17 18 19 20 21 22
signing
authority
certifying
country
Objection.
That's
outside
the
scope Mr.
of the Court's
Order.
I am going
to instruct
Isaacs
not to answer.
BY r"1R_ K.Zl,.SED: Q. Have you ever heard the saying, "the mortgage follows
23 24
25
the note"? MS. THOMAS: scope of the Court's Objection. I would It's outside instruct the
Order.
On~~~R:{t!r§rQ~IS
www.hlcnerntnck.rnm
Mr. Isaacs not to answer. BY MR. KASED: Q. By reading the mortgage, would you say that since the mortgagee is one entity and the lender is another
4
5 6 7 8
entity, would you agree that the mortgage and the note, in this case, have been split? MS. THOMAS: Objection. That's outside the
scope of the Court's Order. Mr. Isaacs not to answer. BY MR. KASED: Q.
I would instruct
9 10 11 12 13 14 15 16 17 18 19 20 21
22 23
Do you know if MERS has any employees? MS. THOMAS: Objection. That's outside the
scope of the Court's order. Mr. Isaacs not to answer. MR. MYERS:
I would instruct
you stick to the four topics that Judge Chabot provided as the framework for this depos t We've just experienced a lengthy series of questions that are clearly, in my opinion, outside the scope, and if you have no desire to comply with Judge Chabot's Order, let us know at this point, because none of the questions you're asking right now comply with the framework. BY MR. KASED: Q. Exhibits 13 through IS, Mr. Isaacs. I don't have any
24
25
~I§.tn~a~§I.9;~I~
'.A.!\.~"'\\'.[lir;nt!n,;ltlr:I:"'f:(Jrn
questions
I just went to
know if you've ever seen these documents before. A. Q. I have not seen any of these documents before. Okay. Thank you. MR. KASED: Irm just about finished. I
just want the record to reflect that Mr. Isaacs is not a party to this lawsuit, andr knowledge, to the best of my yet he was
8
9
instructed by Ms. Thomas not to answer a majority of my questions. Thatrs all I have, Mr. Isaacs. MR. MYERS: The only thing I would add on
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
that is that, to the extent I did not concur in every objection, to make the record clear, that I did
that I do concur in Ms. Thomas's objection, and that the record does reflect that at no point did I ever inform Mr. Isaacs that he should answer any of those questions. I have no further follow-up questions or anything. MS. THOMAS; Mr. Isaacs. MR. KASED: THE WITNESS: Thank you, Slr. Thank you. I have no questions for
6I~tIRr~§I.g;~r!S
'i.. t"",,·.I)il~nlm.I:,'[Jr.k.r:nm "
Signature
5
6 7
8
9
10 11
12
13 14 15 16 17 18 19 20 21 22
23
24 25
o!'§)J:iS;1~§I9;~IS
'i':.r'\
v.., ..'+hl.:nnn:;lnr;l:..OJm
OF NOTARY
C. MATTHES,
certify
that this
was taken before me on the date set forth; that the foregoing by me
stenographically transcription;
and reduced to computer that this is a true, full and of my stenographic notes so
correct transcript
taken; and that I am not related to, nor of counsel to, either party nor interested this cause. in the event of
CSR-6266
~1~~;g,tJ.§,rQ~I5
www.lrionenstock.cum
.
...
,-
,.~
.. ,,'
••
••