I have just asked for permission to appeal to the TN. Supreme Court, in my case, Mills v. First Horizon and MERS.
I am not in default on my mortgage. I just firmly believe that my mortgage lien is invalid and unlawful and because I am a lawyer, I decided to do something about it. My lien is similar to millions of others around the country, and if the Court ultimately rules in my favor, it could set a major precedent around the country. Because I am not in default, the bank can’t argue that I am a worthless scumbag who doesn’t pay his debts. That hasn’t stopped the bank from arguing that I am trying to get my house for free; no argument is too unconscionable for a bank, especially when the bank is running scared. Because I am not in default, my case has serious ramifications for all of those mortgages where people have not defaulted, and there are far many more of them than mortgages where the owners face foreclosures. The very last thing banks want is a court telling them that their mortgage notes are unsecured on their mortgages where people are still paying.
My primary claim is that the MERS lien on my property is invalid. MERS is the lienholder now of millions of mortgages, but MERS has never lent anybody a dime. MERS is a corporation with little or no assets and it acts as a strawman lienholder in the place of the real person who is the noteholder. Traditionally, the noteholder and lienholder have been the same entity. But securitzation changed all that. Now the lienholder, in most of the securitized loans from Wall Street, is MERS, an entity the property owner never owes. The note and the lien are now held by separate entities and have become physically separated from each other.
My primary argument is that this physical separation of the noteholder and lienholder creates a huge public deed recordation problem, which I argue makes the lien void as being against public policy. The separation of the note and deed of trust are deliberate and intentional. The public policy nightmare is that through the use of MERS as a strawman lienholder, the recordation process is transformed from a public, transparent and open system to a private, secretive, one.
With these securitized loans, one can no longer go to the deed records and learn the identity of who must be paid to get a release of the lien. All one can find out is that MERS has the lien, but one can’t find out who one owes; so the public deed recordation system now has become a sham. Everybody must now learn what they can from private sources — such as the MERS website and from the websites of entities like Fannie Mae or Freddie Mac who claim to hold many of the mortgages. But in reality, you can’t learn anything from these websites that is of much importance, and you certainly can’t clean up the title problem that is created when a lienholder is not the same person as the noteholder.
I also allege my lien is void or invalid for several other noteworthy reasons. Many of these liens, like mine, state that MERS is the beneficiary of the deed of trust. Several courts have already held that MERS is not a true beneficiary because MERS is never owed anything, and for a deed of trust to be valid it must have a true beneficiary. When a piece of property is sold at foreclosure the proceeds are supposed to go to the noteholder, who is normally the beneficiary. But when the beneficiary is MERS, the proceeds of a foreclosure sale go to an entity that is not owed anything — they do not go to the noteholder who is owed. So one never knows whether MERS actually sends the proceeds of any foreclosure sale to the noteholder. This creates another huge title problem for foreclosed property. But it also creates a problem for the foreclosed owner who has no way of knowing whether the proceeds of the sale of his property actually went to the person who was owed.
I also allege that my note is lost and the lien fails for lack of an enforceable note. A copy of a note is ordinarily not anymore enforceable than a copy of a check is capable of being cashed.
I also allege that the purported noteholder is unknown, and my servicer, as the agent of the noteholder, has no authority to demand payments of me without disclosing the identity of the noteholder, who is its principal. I have asked my servicer for proof of authority to act on behalf of the noteholder, its principal. Until the servicer provides this proof, I have asked for a cease and desist order against the servicer sending me any more payment demands.
And I have asked for many more things – including the return of my payments on my second lien note, which after I paid it off, never had the original note returned to me. Apparently, the bank lost or destroyed my second mortgage note, and thus could not deliver it to me when I paid it off. Without the original note, the bank has no proof that I owed it anything, so I am asking for my money back.
The TN Court of appeals held my case “was not ripe for adjudication” because I am not in default, and because no one is trying to collect against me on my paid off second mortgage lien note. By ruling that my case “was not ripe for adjudication” they avoided all of the critical issues of my case. By every existing legal standard, my case was ripe for adjudication.
My application to the Supreme Court of TN was filed on Friday September, 11, 2011. The Supreme Court of TN does not have to hear my case; it is a discretionary appeal.
I sincerely hope the Supreme Court of TN will take the case because the Court of Appeals reversed/ignored existing law in order to avoid having to address the real issues of my case, and because the opinion is just simply awful and is now the law in TN. Every lawyer I know who reads the Court of Appeals opinion just howls. It is so obvious that the Court of Appeals did everything possible to avoid having to address the real issues of my case; and in so doing, made some really bad law, reversing well established good law.
For those who might be interested, a copy of my application to the TN Sup Ct. can be found here:
See the positively awful TN Court of Appeals decision here: