Lien Strip Update

[UpsideDownMI]

I filed my AP to strip my second mortgage lien on same day I filed. So far I there has not been a response to my summons and complaint filed with the court. The response is due next week.

I did receive an email this week from my lenders attorney stating that my lender does not wish to oppose my action and is willing to enter a stipulation agreement. I would like to enter a stipulation agreement for the simple fact that both parties will be on record as agreeing to the terms of the lien strip.

The problem I currently have with this is that my lender is not actually the defendant in my AP. They are only an "interested party" as the loan originator and servicer. The lien for my 2nd mortgage was recorded by Mortgage Electronice Registration Systems (MERS), who is a nominee of my lender. Since MERS is on record of holding the lien, they are the actual defendant in my case.

The attorney for my lender believes that we could still file a stipulation agreement/order because MERS in only a nominee, and they contend that my lender is still the legal lien holder. I called the court clerk to try and clarify this issue and they were unsure if the agreement would be honored as my lender is not the defendant. The did say that as an interested party my lender did have the right to respond to my summons and complaint. They also said that I can file the agreement/order and see what the judge determines.

All that being said, I feel that I am in a pretty good position right now. I plan on drafting the agreement over the weekend and filing it with the court next week.

Has anyone been an experience similar to this?

[justbroke]

MERS was a great thing for the lenders... having a single "electronic" holder of mortgages, but they are only nominee. They are not the actual debt holder. I would write a (proposed) stipulated Order as to the complaint action. You may want to talk with the attorney to get the individual points to make in the stipulation. Then file it with the Court and serve it on the lender and the Trustee.

MERS recorded my mortgage as well, and I only served my Motion to Determine Secured Status (as a contested matter, not a complaint) on the actual Mortgage Holder (the person who filed the claim).

If MERS is the one who filed the Claim, you may have issues. If the actual creditor/lender filed the Claim in your case... then you shouldn't have a problem.

[UpsideDownMI]

I have spoke with the attorney and received the points that they would like to address in the stipulation and I will draft as such.

When I was researching AP's in pacer, MERS was listed as the defendant in all cases in which they were on public record as holding the lien in question. So I basically followed these cases as a guide to my case.

MERS is not listed as a creditor in my case and has not filed a claim. Actually, MERS refused to accept delivery of my summons and complaint, although I have not received the package back from the post office as of yet.

I believe that I will end up with a default judgement as the deadline to respond is fast approaching, but I would rather a stipulation agreement to avoid objections down the road. So I will continue to work on the stipulation.

[justbroke]

I believe that I will end up with a default judgement as the deadline to respond is fast approaching, but I would rather a stipulation agreement to avoid objections down the road. So I will continue to work on the stipulation.

So, MERS is the one who declined the summons! That's interesting.

[UpsideDownMI]

Yes, the president/ceo refused service. LOL. That is what I got from USPS web site, but I still haven't received it back yet. I have found opinions that state that refusal to accept service in an AP still constitutes service as the plaintiff did serve and the defendant willingly refused to accept, so I should be good there. I hope.