FIRM COMMENTARY:  The key to attacking MERS and its role as the shell in the shell game of illusionary transfers of mortgages into mortgage backed security trusts is black letter AGENCY law.  Unfortunately, so far most California Superior Court judges STOP THINKING as soon as a defaulted borrower complains.  Hiding behind the narrow GOMES decision, our judges failed to recognize the simple concept observed by the Court in the BAIN case below:

 

“While we have no reason to doubt that the lenders and their assigns control MERS, agency requires a specific principal that is accountable for the acts of its agent. If MERS is an agent, its principals in the two cases before us remain unidentified.12  MERS attempts to sidestep this portion of traditional agency law by pointing to the language in the deeds of trust that describe MERS as “acting solely as a nominee for Lender and Lender’s successors and assigns.”  Doc. 131-2, at 2 (Bain deed of trust); Doc. 9-1, at 3 (Selkowitz deed of trust.); e.g., Resp. Br. of

MERS at 30 (Bain). But MERS offers no authority for the implicit proposition that the lender’s nomination of MERS as a nominee rises to an agency relationship with successor noteholders.13  MERS fails to identify the entities that control and are accountable for its actions.  It has not established that it is an agent for a lawful principal.”

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