(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!