This material deals with MERS' obligation to record an assignment in the land

records when the beneficial interest in a note is in a non-MERS member, and the fact that this
isn't being done. It also addresses the utter lack of reliability of the MERS computer system.

I believe MERS has really stepped in it.

In his declaration, William Hultman, a 'real' MERS' corporate officer and not a straw one, in
“Mitchell”, the well known Nevada case, (dkt No. 74 in the bk court, 07-16226, and again as
an exhibit in the Mitchell appeal by MERS to the District Court), stated that when the note is
transferred to a non-MERS' member, MERS is compelled by the terms of its membership
contract to record an assignment of the deed of trust to that non-MERS' member in the land
records. Hultman declaration p.1:25-27 and p.2:1-3:

“AS LONG AS THE SALE OF THE NOTE INVOLVES A MEMBER OF MERS, MERS
REMAINS THE BENEFICIARY OF RECORD ON THE DEED OF TRUST AND
CONTINUES TO ACT AS NOMINEE FOR THE NEW BENEFICIAL OWNER.

IF A MEMBER IS NO LONGER INVOLVED WITH THE LOAN AFTER IT IS SOLD (read

note sold to non-MERS member such as a trust - sic), AN ASSIGNMENT OF THE LIEN
FROM MERS TO THE NON-MERS MEMBER IS RECORDED IN THE COUNTY WHERE
THE PROPERTY IS LOCATED, AND THE MORTGAGE LOAN IS DEACTIVATED FROM
THE MERS SYSTEM. “

Commentator: This provision is in fact found in MERS' contract. It isn't happening, though,
so Mr. Hultman recites only that which should be done, but isn't.

The reason it must be done is because MERS no longer has nominee or beneficiary status
( pick one) and cannot act for the non-MERS member (assuming arguendo it could in the first
place). In other words, they are at that point 'toast' pursuant to MERS' own contract, and
probably also would be toast as a matter of law for reasons outside this discussion.

The first important thing to recognize and remember here is that when a note is transferred to a
non-MERS member, MERS embers are by its own contract and very likely as a matter of law
toast, and MERS members are also compelled to record an assignment of the deed of trust in
the land records.

MERS contract did not address "reestablishment" of its nominee /beneficiary status once the
note left a/the/any MERS' member. The truth must be that they neglected to even consider the
matter for the formation of the membership contract, and thus did not (if they could) provide
for such an event: They did not provide, nor perhaps could they have, for 're-establishment' of
MERS' (alleged) nominee / beneficiary status when the note's ownership returned (if ever) to a
Mers member. What does this mean? It means MERS alleged status is extinguished forever
when the note no longer is owned by a member.
(The note probably never has returned to any MERS' member in the first place once it has
'left', but that's another story.)
The same William Hultman made another declaration in In re Walker, 10-21656, October 21,
2010, BK Court, Eastern Division, CA at Sacramento (apparently he's been assigned this task)

The declaration.is troubling. Really. It is full of half-truths if not lies. Hultman declaration, P.
2:8-11:

“WHEN THE BENEFICIAL INTEREST IN THE LOAN IS SOLD, THE

PROMISSORY NOTE IS STILL NEGOTIATED PURSUANT TO THE UNIFORM
SECURITY CODE, BUT MERS MEMBERS ARE OBLIGATED TO NOTIFY MERS OF
THE TRANSFER SO THAT IT CAN BE ELECTRONICALLY TRACKED ON THE MERS
SYSTEM.”

Commentator: Yes, that's probably how it's supposed to work, but because MERS is no more
than a computer system and a contract, and does no diligence, MERS has no way of knowing
if proper entries are made by its members or not.

Declaration at P. 2:20-23:

'THE MERS TERMS AND CONDITIONS …...PROVIDE THAT 'MERS SHALL AT ALL
TIMES COMPLY WITH THE INSTRUCTIONS OF THE HOLDER OF MORTGAGE
PROMISSORY NOTES'.”

Commentator: “MERS shall ..comply”? MERS per se doesn't comply with anything. It's
REAL officers and computer-teckies do nothing. They make no entries of transfers of notes,
they prepare and execute no documents. It is only MERS' members which make entries and
only the straw officers at its members or those members' foreclosure mills which actually
prepare and execute assignments of deeds of trust and even to themselves, and this is generally
based on what those members have and have not entered into the computer system. But WHO
WOULD KNOW WHAT IS ENTERED AND WHAT IS NOT AND IF IT'S ACCURATE AND
COMPLETE? MERS has no way to know if the members are entering the transfers of notes to
non-MERS' members, or even to other MERS' members. Whether the members are or are not
making these entries is downright suspect. Regardless, no evidence is ever submitted to address
the accuracy of MERS' 'records', i.e., its members entries. Nor unfortunately have I seen this
particular issued addressed by an opponent. MERS records are simply not reliable. Nor then are
the alleged assignments done by its members just on that score.

So, again, at least if a transfer to a non-MERS member has not been entered by say, Wells
Fargo, B of A, etal, the member (who was to record the transfer to a non-MERS member on
the MERS system or even to another member, but didn't) are pretty much free to assert any
position they choose, standing on what is merely ALLEGED to be (or perhaps hiding) on the
MERS' computer system. WHO WOULD KNOW? Because there is no diligence, NO ONE
would.

And the only 'ledgers' I have seen (not MERS' computer records, but the docs which
supposedly identify the loans in a trust) which purport to demonstrate that a particular note
went into a particular trust don't do much more than identify the loan by a zip code and and a
loan amount. (Can you imagine running your business with 'records' like this?)
More Walker declaration:

“AS OF THE DATE OF THE ORIGINATION OF THE NOTE AND DEED OF TRUST,
Bayrock Mortgage was a MERS member, and pursuant to the MERS' rule of membership,
Rule 2, Section 5, Bayrock Mortgage appointed MERS to act as its agent to hold the deed of
trust as nominee on Bayrock's behalf. …...... Bayrock subsequently transferred the note to
EMC. As of the date the note was transferred , EMC was a MERS member........EMC
subsequently transferred the note to Citibank......as of the date the note was transferred to
Citibank, Citibank was a MERS member.....On March 5, 2010, MERS executed an assignment
of the deed of trust to Citibank.”

Commentator: The date of the assignment of the deed of trust to Citibank is the only date
mentioned by Mr. Hultman in regard to transfers. Does he not know the others? He then
attached an alleged copy of Bayrock's membership dated January 2007. The note and deed of
trust were dated November of 2006!

Mr. Hultman's declaration is first of all hearsay. He has no personal knowledge of the 'facts' he
alleges. Further, while some rules allow testimony, essentially, by way of declarations, there
are also rules in place to object to declarations. For instance, declarations do not give an
opponent an opportunity to examine the declarant......a declaration cannot be cross-examined.

This is one of the reasons it is so very difficult for pro se litigants. They can very easily get lost
in the sea of rules of evidence and a lack of knowledge of the rules of procedure can be fatal.
The sad news here is that a lot of attorneys get lost there, too. The attorneys who get this stuff
mostly work for the other team. It's my opinion a lot of them are liars for hire.

As to Mr. Hultman's allegation that the '”note was transferred to Citibank” No, it wasn't, not
the beneficial interest, anyway. The note was transferred to the trust (well in essence should
have been), a non-MERS member for which Citibank alleged it was the trustee. I don't
believe at that time any evidence was submitted to support a finding that the Walker note was in
fact in the trust. And, Citibank may have been a MERS member, but some may argue
“Citibank as Trustee” is not a member since there is no entity called 'Citibank as Trustee', and
at any rate, the trustee does not have the beneficial interest in the note.. If anyone, it is the
trust, a non-MERS member. (I say 'if anyone' in deference to some people's thought that the
note is destroyed by the conversion to securities.)

But a big problem here, of course, is that Bayrock was in fact not a MERS member on the date
the loan was originated. WHO WOULD (NORMALLY) KNOW? IT'S ALSO SAD BUT
TRUE THAT MERS BEING NAMED ON THE DEED OF TRUST IS IN FACT NOT
EVIDENCE OF THE / ANY LENDER'S MEMBERSHIP IN MERS.

The next big problem in Walker for MERS is that the beneficial interest in the note has been
transferred to a non-MERS member, the trust, yet no assignment of the deed of trust was
recorded in the land records at the time of the transfer. MERS' attorneys are fond of reciting
certain state statutes alleging recordation is not necessary. Yet, by the terms of its own contract,
MERS knows its members are to record assignments under certain circumstances. Further, as I
have previously stated, some if not all states - I really don't know; which, one should read one's
own state statutes regarding recordation - have statutes which provide that an unrecorded
interest in real property is ONLY binding on the parties to that unrecorded interest (such as
NRS 111.315). This means that an unrecorded interest is not binding on the homeowner, who
is a third party, and NOT a party to the instrument which created that interest in the
homeowner's property. If it's not binding on the homeowner, an unrecorded assignment is
surely not enforceable against the homeowner.

Mr. Hultman stated that the assignment was done “pursuant to the MERS contract”, which
must be MERS-speak for “because the beneficial interest in the note had been transferred to a
non-MERS member and an assignment should have been recorded in the land records and
wasn't.” Mr. Hultman's actual words are not quite a lie, but they are nonetheless dishonest. He
does not tell the court of this mandate. He does not want the court to know of the non-MERS
members' interest in the chain of the note's ownership. This information appears to have been
willfully kept from the court, the argument was framed in a manner to willfully mislead the
court, and the intent to do so can be found in the words used and those not used.. This non-
MERS member ramification is one of the reasons MERS and its members fight discovery so
vehemently. It's also the real reason MERS elected not to disclose the names of the note
owners in “Mitchell”. They claimed it was a 'test' case. Not. This didn't really cost them much
in the big picture. MERS was simply denied relief from stay in Nevada bankruptcy court. No
problem. Right after a collective yawn, different mauraders went in with their bogus
assignments.

It is an outrage and nothing short that MERS' straw officers purport to “assign the note” along
with the deed of trust in many of the assignments. Since this is entirely impossible, it is also a
violation of state recording laws because a false instrument has been submitted for recordation.
A false instrument is also being submitted to the court. If the courts ever get this, and it doesn't
shock their conscience, I don't know what would.

So now we know that when the beneficial interest in the note goes to a non-MERS member, an
assignment of the deed of trust must be recorded in the land records and MERS may no longer
act as nominee,or beneficiary, or agent, or whatever they are calling themselves today. But
then, when a member deems it a necessary part of its taking someone's home, the member's
straw officer executes an assignment to its employer or to another MERS member in the name
of MERS. BUT THEY CAN'T, because MERS is FOREVER TOAST since MERS' status
canNOT be re-established.

Therein lies the REAL RUB for MERS and its members: their contract does not provide for
MERS' re-establishment, so when a member either gets or alleges possession of the note
endorsed usually in blank, or even to itself AFTER the note has been owned by a non-Mers
member (Trust), they are 'messed', because there is no re-establishment of MERS' (alleged )
status in the deed of trust. Perhaps the realization of MERS' loss of status and the subsequent
failure of re-establishment of that (alleged) status came too late, and by then, a zillion
foreclosures had been done in MERS' name by the straw officers/ member-employees or
foreclosure millhouses. MERS did not provide for re-establishment in its contract with its
members, (nor perhaps could they have as a matter of law). MERS and its members know this
nw if they didn't.

IF MERS started out 'straight', if it had been created in good faith (which some of us think is
dubious), it is actually now a pawn, as its members have gotten way out of control, starting
with NOT making the entries into the MERS' system when notes are transferred. Theories on
why these entries were and are not made as well as why the deed of trust assignments were
then not recorded abound, from sloppiness to the most brazen of criminalities.

Even if MERS did have beneficiary /nominee status or w/e,

when the NOTE GOES TO A NON-MERS MEMBER, THE TRUTH IS, THE
DEED OF TRUST ASSIGNMENT SHOULD AND MUST BE EXECUTED
CONCURRENTLY (which is how it was done in the 'old' days).

Why? Because otherwise MERS' members are without authority since MERS
MEMBERS MAY ONLY ACT IN MERS' NAME WHEN THE BENEFICIAL
INTEREST IN THE NOTE IS IN A MERS' MEMBER. Once it isn't, the member
may not act in MERS name and thus may no longer even purport to assign a deed
of trust.

One might next consider the matter of bifurcation of the note and deed of trust. It may
be that the the bifurcation argument only works IF MERS IS actually the beneficiary /
nominee on a deed of trust, because then argument is reasonably made that the note and
dot are actually bifurcated, and certainly when the beneficial interest in the note is in a
non-MERS' member. That may not be true if a dot follows the note. BUT, then,
significantly, if the dot follows the note and the note is securitized or otherwise with a
non-MERS member, then MERS is/was still TOAST and an assignment should have
been recorded to the non-MERS member and the loan should have been de-activated
from MERS' computer system. .

This would be true at least for every single loan where the beneficial interest in the note
is held or was held in the chain by one or more non-MERS-member-Trusts.
The significance of this cannot be underscored, the fact that MERS is TOAST and also
that MERS straw officers (assuming arguendo MERS ever had any authority to assign a
deed of trust and that's a big assumption) must record an assignment in the land records
when the note is transferred to a non-Mers member, and the ramifications of this. As I
understand MERS' membership contract, the only time a member is actually authorized
to execute an assignment is when the beneficial interest in the note is transferred to a
non-MERS member.

Bottom Line:

MERS has been divested of its alleged status in the deeds of trust by the transfers of the
beneficial interest in the notes to non-MERS' members. MERS overlooked this
circumstance in their contracts and the (alleged) status which was lost was not and
cannot be 're-established'.

It's possible they may not have realized this until many, many foreclosures had been
done under color of their (alleged) status in the deeds of trust. Mr. Hultman's
declarations, however, points to their knowledge that what they are doing was and is
wrong.
I have come to believe one must approach MERS, etal's pleadings as a criminal defense
attorney would. One must know the rules of evidence in order to accomplish this.

Entries were not made and assignments were not recorded when they should have been.
MERS' alleged status in the deeds of trust cannot be re-established once lost. MERS
cannot control the actions of its members. Yes, the tail is wagging the dog. The members
have carte blanche whether by design or as an unforeseen consequence. MERScorp
created a monster, MERS is being had by its members (and so are we), and short of
litigation against its own members for the next millennium, MERS is helpless to stop it.
MERS then in my opinion has chosen to knowingly participate in an errant and unlawful
course of action to cover up the wrongful foreclosures which it knows has already
occurred and for which there is no curing the "deficiencies", and that course is to
continue the charade.

These are my own opinions.