Michigan Trial Judge: Failure To Strictly Follow Pooling & Servicing Agreement, NY Trust Law Sinks Non-Judicial Foreclosure As To MERS Mtg Assignments

Buried in a recent Michigan story on the battle against foreclosure robosigners, The Michigan Messenger reports:

• [A] judge in Washtenaw County ruled on Tuesday that foreclosures involving any title exchanges controlled by Michigan Electronic Recording Systems, Inc. (MERS) were improper. That ruling could void thousands and thousands of foreclosures in the state because it is likely the bank or mortgage company had no legal right to foreclose on the property.
• Michigan law requires each mortgage assignment — which means company A sells the mortgage to company B — to be registered with the country register of deeds office. MERS marketed itself as a company that would keep track of the transfers, without all the fees associated with filing assignments. Many of the mortgages were sold over and over again, but the judge ruled that MERS had failed to keep an accurate accounting of the assignments.
• In short, no one knew who exactly owned the mortgage, and thus had the right to foreclose. Hertel said his office was contacting those homeowners who were affected by the fraudulent foreclosures.(1)

Source: Ingham County to fund attorney to help with foreclosures.

For the ruling, see Hendricks v. U.S. Bank Nat'l Association, Case N. 10-849 CH (Washtenaw Cty. Trial Ct., June 6, 2011).

Thanks to Deontos for the heads-up on this story.

(1) Central to Washtenaw County Trial Court Judge Archie C. Brown's ruling was the bankster's failure to strictly follow with the terms of the Pooling and Servicing Agreement, as well as violations of the trust law of the State of New York in connection with the attempt to transfer the borrower's loan to the trust. Accordingly, Judge Brown declared the sale of the borrower's home through the use of a non-judicial foreclosure process to be absolutely void (ie. void ab initio).

It should be noted that one of the banksters named in the homeowner's lawsuit, the originator and original Lender of the Note and Mortgage, filed a counterclaim for judicial foreclosure against the homeowner, judgment on which was granted by Judge Brown.