“AM I YOU TOMORROW?”
From Sérgio Jacomino’s Observatório do Registro and Migalhas warnings to Scott Erik Stafne’s and Bill Paatalo's and citizens's denunciations: what the legal uncertainty of public records in the United States teaches Brazil
MERS, securitization, destruction of original promissory notes, robo-signing, fraud in foreclosures, extinction of the Torrens system in the State of Washington, and the risks of fragmentation, platformization, and privatization of Brazilian public records
Comparative legal analysis by Marcia Almeida, with the assistance of ChatGPT Artificial Intelligence
July 19, 2026
SUMMARY
In the United States, the creation of the Mortgage Electronic Registration Systems — MERS —, the mass securitization of real estate loans, the private circulation of promissory notes, the fragmentation of the functions of creditor, servicer, trustee, custodian, and investor, and the industrial production of enforcement documents contributed to a profound crisis of confidence in public records and in foreclosure proceedings.
American attorney Scott Erik Stafne denounces, based on concrete cases brought before the courts of the State of Washington, that many foreclosures were supported by documents whose authenticity, chain of custody, signing authority, and correspondence with the original titles were seriously contested.
In proceedings involving loans originated in 2006 by New Century Mortgage, homeowners contend that the original promissory notes were digitized and destroyed, and were later replaced by documents whose authenticity was questioned. These allegations appear in recent petitions and judicial decisions, although not all of them have been definitively accepted by the courts. (courts.wa.gov)
The robo-signing scandal demonstrated that employees of banks, servicers, and outsourced companies signed thousands of declarations, assignments, and affidavits without personal knowledge of the facts, without examining the files, and, in many cases, without adequate notarial verification. Federal agencies, congressional hearings, and settlements entered into by the Department of Justice recognized systemic failures in foreclosure documentation and imposed specific rules to prevent the destruction of original notes that were still in force and the execution of assignments by persons without authority. (gao.gov)
Meanwhile, the State of Washington extinguished, through House Bill 1376, enacted in 2022, its optional title registration system based on the Torrens model. The properties still subject to that regime were withdrawn from the system on July 1, 2023, and transferred to the ordinary document-recording system. The law ordered the preservation of the Torrens books, indexes, and files in the permanent records of the counties, but eliminated the special legal structure of title registration that had existed since 1907. (lawfilesext.leg.wa.gov)
In Brazil, Sérgio Jacomino — attorney, former president of the Brazilian Institute of Real Estate Registration, and registrar of the 5th Real Estate Registry Office of São Paulo — has been warning that the multiplication of databases, platforms, tokens, blockchains, and electronic flows does not automatically produce legal certainty.
His formulation is direct:
Data are not information. Information is not certainty. Certainty is not trust. Registral publicity is legal certainty.
The American experience demonstrates the concrete consequences of what Jacomino warns against: when the public chain of title is replaced by private databases and when legal qualification is reduced to the filing of documents or the circulation of information, the system may preserve, transmit, and reproduce a falsehood with the appearance of legality.
The question directed to Brazil is inevitable:
Am I you tomorrow?
1. TWO JURISTS, TWO COUNTRIES, AND THE SAME PROBLEM
Sérgio Jacomino and Scott Erik Stafne work within different legal systems.
SERGIO JACOMINO writes from the Brazilian registral tradition, in which the Real Estate Registry performs a function of legal publicity, qualification, continuity, legality, and preventive protection of real rights.
SCOTT ERIK STAFNE works in the American courts, especially in the State of Washington, representing or supporting homeowners who challenge mortgage foreclosures promoted by banks, servicers, trustees, and securitization trusts.
SCOTT ERIK STAFNE — Co-Founder and Church Advocate of The Church of the Gardens is a constitutional lawyer and Certified Disability Advocate , with more than 50 years of courtroom experience, he focuses his work on challenging judicial structures that have departed from constitutional principles, particularly those that compromise judicial neutrality and fail to honor the promise of adjudication by a competent and impartial tribunal. He continues to research, write about, and litigate constitutional questions concerning judicial independence, Article III authority under the United States Constitution, and due process violations arising from systemic bias and institutional design. He was unlawful and unconstitutionally disbarred on May 2026, and Current proceedings terminating his Washington law license remain disputed and presently subject to review in federal courts.
One analyzes the institutional architecture of registration.
The other confronts, in forensic practice, the consequences of an architecture that allowed:
- private circulation of credits;
- removal of successive assignments from public records;
- separation between the note and the security;
- destruction or disappearance of original documents;
- retrospective production of assignments;
- and foreclosures based on declarations whose truthfulness could not be easily verified by the homeowner.
Despite the differences between Brazil and the United States, both formulate the same warning:
Technology does not create title.
A database does not replace the instrument.
A recorded document does not become true merely because it was recorded.
Information produced by the interested party cannot be treated as indisputable evidence against the homeowner.
2. WHAT MERS IS
MERS means:
Mortgage Electronic Registration Systems
It is necessary to distinguish:
- MERSCORP Holdings, Inc., the company that controls the system;
- and Mortgage Electronic Registration Systems, Inc., the entity that appears in countless mortgage instruments as mortgagee of record or nominee of the lender and its successors.
MERS is not a public registry.
It does not belong to the State of Washington.
It is not administered by the County Auditors.
It is not controlled by the public registrars responsible for county real estate files.
It is not a court.
It is not a public oversight agency.
It is a private infrastructure created by the mortgage industry itself to electronically track changes related to loans.
The model allowed MERS to remain nominally identified in the public record while the economic interests in the loan were transferred among banks, servicers, trusts, and investors.
The Government Accountability Office — GAO — explained that the system allowed loans to be bought and sold without the need to record and pay a public fee for each mortgage assignment. (gao.gov)
The economic objective was clear:
- to reduce costs;
- to accelerate transactions;
- to facilitate securitization;
- and to avoid repeated recordings in thousands of counties.
But the legal effect was the creation of a parallel system.
The public record could continue to show the name MERS while the credit circulated several times within private databases that were not accessible to the homeowner under the same conditions as a public registry.
3. SAVING RECORDING FEES AND EMPTYING REGISTRAL PUBLICITY
Before MERS, the assignment of a mortgage or deed of trust could be documented and recorded in the county where the property was located.
Each new transfer required:
- preparation of the instrument;
- signature;
- acknowledgment;
- presentation for recording;
- indexing;
- filing;
- and payment of the respective fee.
MERS allowed the industry to maintain a constant nominal name in the public record and to register economic changes internally.
This produced an asymmetry:
In the public record
The citizen saw MERS.
In the private system
The loan could be connected to:
- another servicer;
- another investor;
- another trust;
- another custodian;
- another trustee;
- or another economic entity.
The homeowner could no longer identify, merely by consulting the public record:
- who possessed the note;
- who had acquired the credit;
- who bore the economic risk;
- who received the payments;
- who could declare default;
- and who had standing to order the sale of the home.
The public record continued to exist formally, but it ceased to reflect the entire economic chain of the transaction.
4. SECURITIZATION FRAGMENTED THE RELATIONSHIP BETWEEN THE DEBT AND THE HOME
In the traditional relationship, it was relatively simple to identify:
- the debtor;
- the creditor;
- the note;
- the security;
- and the bank that received the payments.
With securitization, the loan became part of much more complex structures.
A single transaction could involve:
- originator;
- seller;
- aggregator;
- sponsor;
- depositor;
- trust;
- trustee;
- document custodian;
- master servicer;
- subservicer;
- MERS;
- investors;
- insurers;
- foreclosure companies;
- and law firms.
The home remained physically located in Washington.
But the credit could be transferred to a trust governed by private documents, divided into certificates, and sold to domestic and foreign investors.
This structure could only be legally secure if the following were preserved:
- the original note;
- all endorsements;
- the allonges;
- delivery receipts;
- the physical chain of custody;
- assignments of the security;
- the dates of the transfers;
- and the correspondence between the note and the trust that claimed to own it.
When that chain was not preserved, the fundamental question arose:
Who actually possessed the right to take the home from the homeowner?
5. A PROMISSORY NOTE AND A DEED OF TRUST ARE NOT THE SAME DOCUMENT
The promissory note represents the debt.
The deed of trust represents the real estate security that secures payment.
The note contains the promise to pay.
The security ties the property to the fulfillment of that promise.
In the State of Washington, the law defines the beneficiary of the deed of trust in relation to the holder of the instrument that evidences the secured obligation.
This distinction was central in the decision in Bain v. Metropolitan Mortgage Group.
The Washington Supreme Court concluded that MERS could not be considered a lawful beneficiary for purposes of the Deed of Trust Act when it did not possess the promissory note or the instrument representing the obligation. (courts.wa.gov)
That decision revealed the structural contradiction of the model:
- MERS could appear in the document as beneficiary;
- but it might never have lent money;
- never have acquired the note;
- never have received the payments;
- and never have borne the economic risk.
The name written in the document did not necessarily correspond to the substantive ownership of the obligation.
6. 2006: THE ALLEGATIONS CONCERNING THE DESTRUCTION OF ORIGINAL NOTES
In the cases related to loans originated by New Century Mortgage in 2006, Scott Stafne and the homeowners represented by him contend that the original promissory notes were digitized and destroyed as part of the business practices then adopted.
In a petition filed in 2025 with the Washington Supreme Court, it was alleged that testimony and documents demonstrated that it was probable that New Century had destroyed the original note signed by the Larsons in 2006, preserving only an electronic reproduction. The petition also mentioned statements by experts and documents connected to the New Century bankruptcy. (courts.wa.gov)
In another recent action, concerning Alvin White, the petition filed by Scott Stafne again contended that the mortgage industry routinely destroyed original paper notes during 2006, replacing them with supposed “electronic originals.” (courts.wa.gov)
These are serious procedural allegations.
They should not be presented as facts definitively recognized in every case.
But they also cannot be dismissed as mere theory, because:
- they are recorded in judicial proceedings;
- they were supported by testimony and documents;
- they were considered by the courts;
- and they correspond with later official concerns regarding lost notes, destruction of documents, and the absence of a chain of custody.
In a 2024 decision, the Washington Court of Appeals expressly recorded that the Larsons alleged that the original 2006 note had been destroyed and replaced by a forged note. The court did not definitively resolve the authenticity of the document, but acknowledged the existence of the allegation in the proceeding. (courts.wa.gov)
7. AN ELECTRONIC IMAGE IS NOT NECESSARILY THE ORIGINAL INSTRUMENT
The difference between an original and a reproduction is not merely aesthetic.
The original document allows examination of:
- paper;
- ink;
- signature;
- writing pressure;
- erasures;
- overlays;
- sequence of endorsements;
- attachment of allonges;
- dates;
- material alterations;
- and physical compatibility between the document and the period in which it was allegedly signed.
An electronic image may reproduce the visual content.
But it does not preserve all the material elements required for a complete forensic examination.
When the original is destroyed, society becomes dependent on whoever:
- produced the image;
- controlled the scanner;
- stored the file;
- inserted the metadata;
- administered the system;
- and certified that the image corresponded to the true instrument.
If all these functions remain under the control of the same industry interested in collection and foreclosure, the independence of the evidence is compromised.
8. FEDERAL SETTLEMENTS BEGAN TO PROHIBIT THE DESTRUCTION OF NOTES
The national settlements entered into in 2012 by the United States government with the largest mortgage servicers expressly established that servicers should not intentionally destroy original notes that were still in force.
They also required assignments to be:
- signed by persons with legal authority;
- corresponding to transactions actually completed;
- and properly acknowledged. (justice.gov)
These requirements did not arise by chance.
They responded to real failures identified in the preservation, transfer, and use of mortgage documents.
The need to expressly prohibit the destruction of notes demonstrates that the problem was serious enough to justify a specific national obligation.
9. ROBO-SIGNING
The term robo-signing designates the industrial production and signing of documents related to foreclosures.
Employees and contractors signed hundreds or thousands of documents in short periods.
Often, they:
- did not read the files;
- did not examine the notes;
- did not verify ownership;
- did not possess personal knowledge of the facts;
- signed as representatives of different institutions;
- and produced declarations intended to be presented to courts or public records.
The problem was not only the speed.
It was the falsity of the declaration of knowledge.
The person signed as though he or she had verified facts that had never been investigated.
The United States Congress recorded that the so-called robo-signers signed documents without knowledge of the underlying facts and that these practices threatened confidence in due process. (govinfo.gov)
The Department of Justice entered into a settlement of approximately US$25 billion with the five largest servicers because of robo-signing and other abuses in mortgage servicing and foreclosure. (justice.gov)
The GAO also identified deficiencies in internal controls, document preparation, and oversight of companies that processed foreclosures and tracked loan ownership. (gao.gov)
10. DOCUMENTS PRODUCED TO FILL CHAINS THAT DID NOT EXIST PUBLICLY
Securitization and MERS allowed countless transfers to occur outside public records.
When default occurred, the entity responsible for the foreclosure needed to demonstrate:
- possession of or the right to enforce the note;
- beneficiary status;
- authority to appoint the trustee;
- and regularity of the chain of transfers.
If the original documents had been lost, destroyed, or never properly delivered, three possibilities remained:
- admit that the chain could not be proven;
- judicially seek recognition of a lost or destroyed note;
- or produce documents intended to retrospectively create the appearance of a valid chain.
Scott Stafne’s denunciations focus precisely on the third hypothesis.
Assignments, affidavits, endorsements, and declarations would have been produced afterward to state that an earlier transfer had occurred.
The later recording of a document, however, does not prove that the transfer occurred on the declared date.
The document may be:
- true;
- inaccurate;
- produced without authority;
- retrospective;
- or false.
The act of recording it does not eliminate that doubt.
11. BILL PAATALO’S DOCUMENTARY ANALYSIS: DERECOGNITION, DESTRUCTION OF ORIGINAL NOTES, AND THE STRUCTURAL IDENTIFICATION OF THE CREDITOR
In July 19th, 2026, Scott Erik Stafne published William "Bill” Paatalo's denunciations titled:
“How Derecognition, Securitization, and the Deliberate Destruction of Original Notes Rendered Mortgage Enforcement Structurally Impossible”
The paper was reproduced and introduced by Scott Erik Stafne in:
The PDF identified on the publication page is available at:
https://www.academia.edu/attachments/133506546/download_file
Paatalo’s study constitutes an addendum to his earlier article, published, by Scott Erik Stafne on Academia.edu:
“How Your Mortgage Became a Wall Street Security Without Your Knowledge.”
His central thesis is that mortgage securitization did not merely transfer loans from one creditor to another. According to his analysis, it divided and redistributed the economic, accounting, documentary, custodial, and enforcement components of the mortgage relationship among:
- originators;
- sponsors;
- sellers;
- depositors;
- trusts;
- trustees;
- document custodians;
- servicers;
- subservicers;
- investors;
- nominees;
- MERS;
- and electronic databases.
Paatalo argues that the resulting structure may separate:
- the debt from an identifiable creditor;
- the note from the mortgage or deed of trust;
- economic ownership from legal enforcement;
- possession from beneficial interest;
- document custody from servicing authority;
- profit from responsibility;
- and the power to foreclose from personal knowledge of the underlying transactions.
The significance of this paper lies not merely in its conclusion, but in the documentary materials it assembles and the questions it directs courts and borrowers to investigate.
11.1. Scott Stafne’s “Mammon Pattern”
Scott Erik Stafne introduces Paatalo’s work through what he calls the Mammon Pattern.
By this expression, Stafne describes a recurring institutional process in which systems originally created to serve human beings and their relationships are progressively reorganized so that:
- wealth;
- institutional power;
- efficiency;
- financial preservation;
- or organizational self-protection
become their governing objectives.
At the same time, responsibility to actual persons becomes:
- fragmented;
- obscured;
- transferred;
- depersonalized;
- or subordinated to the system itself.
Applied to mortgage securitization, the pattern consists of constructing artificial separations between:
- the homeowner and the actual creditor;
- the note and the security instrument;
- ownership and enforcement;
- the institution receiving financial benefits and the institution appearing in court;
- the person signing the affidavit and the person with actual knowledge;
- and the entity exercising legal power and the entity bearing responsibility for error or fraud.
Stafne’s argument is that the institutional system begins to exhibit the Mammon Pattern when the people whose promises, homes, payments, and property created the transaction are required to serve the financial architecture, rather than the architecture continuing to serve those human relationships.
11.2. The “Closed Class” of Enforcement Proposed by Paatalo
Paatalo begins with language commonly found in residential promissory notes:
“I promise to pay the Principal, plus interest, to the order of the Lender.”
The note also commonly provides that the lender may transfer it and defines the “Note Holder” as the lender or anyone who takes the note by transfer and is entitled to receive payments.
From this language, Paatalo constructs what he calls a closed class of enforceability:
- the original named lender; or
- a person who took the note by transfer.
He argues that, in a securitized transaction, the original lender ordinarily sold the loan and removed it from its balance sheet. According to his theory, the original lender therefore ceased to function as the creditor.
He then argues that a downstream claimant must prove a legally effective transfer of the instrument.
The practical evidentiary questions raised by this analysis are legitimate and important:
- Was the note transferred?
- Was it delivered?
- Was it endorsed?
- Was the endorsement made before litigation?
- Was an allonge attached to the note?
- Who possessed the original?
- When did possession change?
- Did the note enter the asserted trust?
- Does the alleged transferee have the rights of a holder?
- Is the foreclosing party acting for a person entitled to enforce?
However, the conclusion that only the legal owner may enforce the note cannot be stated as an absolute rule under Washington law.
RCW 62A.3-301 defines a “person entitled to enforce” as:
- the holder of the instrument;
- a nonholder in possession who has the rights of a holder;
- or, in specified circumstances, a person not in possession who may enforce under the lost-instrument provisions.
The statute expressly states that a person may be entitled to enforce an instrument even though that person is not the owner or is in wrongful possession of it.
Therefore, Paatalo’s analysis is strongest when used to demand strict proof of the legal basis for enforcement, not when converted into the categorical proposition that lack of economic ownership automatically defeats enforcement.
11.3. Transfer Requires Delivery of the Instrument
Paatalo relies heavily on Article 3 of the Uniform Commercial Code.
Washington’s corresponding provision, RCW 62A.3-203, provides that an instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving the recipient the right to enforce it.
The provision also states that:
- transfer vests in the transferee the transferor’s right to enforce;
- lack of an endorsement may prevent the transferee from becoming a holder;
- the transferee may have a right to demand the missing endorsement;
- and negotiation does not occur until the endorsement is made.
Accordingly, the following distinctions must be preserved:
- ownership is not always identical to enforcement authority;
- possession is not always identical to beneficial ownership;
- transfer is not always identical to negotiation;
- assignment of a mortgage is not necessarily the same act as transfer of a negotiable note;
- and an electronic database entry is not itself physical delivery of a paper instrument.
Paatalo’s documentary approach is useful because it requires the claimant to identify which legal route it relies upon:
- holder status;
- nonholder possession with rights of a holder;
- lost-instrument enforcement;
- agency for a person entitled to enforce;
- or another legally recognized basis.
The claimant should not be permitted to move ambiguously among these categories without producing the evidence required for each one.
11.4. The Florida Bankers Association Comments and the Destruction Controversy
A central document cited by Paatalo is the Florida Bankers Association’s 2009 filing in Florida Supreme Court Case No. SC09-1460.
The official filing is available at:
https://supremecourt.flcourts.gov/content/download/328731/file/09-1460_093009_Comments
In opposing a proposed verification requirement for residential foreclosure complaints, the Florida Bankers Association stated that paper documents related to notes and mortgages were commonly converted into electronic files shortly after closing.
The filing further stated that some lost-note pleadings arose because the physical document had been “deliberately eliminated” after conversion to an electronic file.
Paatalo interprets that language as an industry admission that original promissory notes were systematically destroyed before later securitization transfers could be completed through physical delivery.
That interpretation raises a serious evidentiary issue, but it must be carefully framed.
The Florida Bankers Association filing establishes what the trade association represented to the Florida Supreme Court. It does not, by itself, prove that:
- every original note was destroyed;
- every securitized loan lacked physical delivery;
- every trust failed to receive the instrument;
- or every foreclosure claimant was unable to satisfy the applicable lost-note statute.
The document should therefore be used as:
- evidence of an asserted industry practice;
- a basis for discovery;
- a ground for demanding custodial records;
- and a reason to test whether a claimant’s account of possession is truthful.
It should not be treated as conclusive proof regarding every individual loan.
11.5. Enforcement of Lost or Destroyed Instruments
Paatalo argues that lost-note statutes cannot cure the deliberate destruction of notes because the relevant claimant often cannot prove that it possessed the instrument and was entitled to enforce it when possession was lost.
That is a legally significant argument.
Under RCW 62A.3-309, a person not in possession may enforce a lost, destroyed, or stolen instrument only if statutory conditions are satisfied.
The claimant must establish, among other matters, that:
- it was in possession of the instrument;
- it was entitled to enforce the instrument when loss of possession occurred;
- the loss was not caused by a transfer or lawful seizure;
- the instrument cannot reasonably be recovered;
- the terms of the instrument can be proved;
- and the claimant’s right to enforce can be proved.
The court may not enter judgment unless the person required to pay is adequately protected against the risk that another claimant may later seek to enforce the same instrument.
Consequently, the destruction or disappearance of an original note is not legally irrelevant.
It creates specific questions:
- Who last possessed the instrument?
- Was that entity entitled to enforce it?
- When was it lost or destroyed?
- Was destruction intentional?
- Did destruction occur before or after the alleged transfer?
- What evidence proves the note’s terms?
- What evidence proves the claimant’s enforcement rights?
- How will the homeowner be protected against duplicate enforcement?
Paatalo’s strongest contribution is to insist that a database image or servicer declaration cannot automatically substitute for these statutory elements.
11.6. In re Kemp and Documents Created in Anticipation of Litigation
Paatalo also relies on In re Kemp, 440 B.R. 624 (Bankr. D.N.J. 2010).
In that proceeding, the court examined whether the claimant had possession of a properly endorsed note and whether the note had been transferred in accordance with the governing documents.
According to the decision discussed by Paatalo:
- the note had not been endorsed in blank;
- it had not been delivered to the asserted trustee as required by the pooling and servicing agreement;
- evidence indicated that the original remained with the originating institution;
- a lost-note certification conflicted with testimony regarding the note’s location;
- and an allonge was prepared in anticipation of litigation.
The significance of Kemp is not that every securitized mortgage necessarily contains the same defects.
Its significance is that it demonstrates why courts must not assume that:
- the trust received the note;
- the required endorsement occurred;
- the custodian possessed the original;
- a lost-note declaration is accurate;
- or a later-produced allonge existed at the time of the alleged transfer.
The documentary record must be examined in each case.
11.7. Derecognition Under Accounting Standards
Paatalo places great emphasis on accounting derecognition.
He argues that when an originator treats the transfer as a sale and removes the loan from its balance sheet, it has formally represented that the asset no longer belongs to it.
This is relevant evidence concerning the economic and accounting treatment of the transaction.
It may assist in determining:
- whether the originator retained an economic interest;
- whether it continued to carry the loan as an asset;
- whether a sale was reported to regulators or investors;
- and whether later litigation positions are consistent with prior financial reporting.
However, accounting derecognition does not, by itself, answer every question under negotiable-instruments law.
Accounting standards determine how a transaction is recognized in financial statements.
They do not automatically determine:
- who possesses the note;
- who has holder status;
- whether a transferee acquired the transferor’s enforcement rights;
- whether an agent may act for a person entitled to enforce;
- or whether the statutory requirements for a lost note have been satisfied.
Derecognition is therefore relevant evidence, but it must be connected to the governing law and the specific documentary chain.
11.8. Powell v. Ocwen Financial Corp.
Paatalo cites Powell v. Ocwen Financial Corp., decided by the United States Court of Appeals for the Second Circuit in 2026.
The case concerned ERISA-regulated pension-plan investments in mortgage-backed securities and the legal characterization of interests in REMIC trusts.
The Second Circuit treated certain certificates as beneficial interests in the trusts and remanded for consideration of whether Ocwen acted in a fiduciary capacity concerning the mortgages underlying the trusts.
The decision supports the proposition that mortgage-backed certificates may represent beneficial interests linked to trust assets.
It does not, by itself, establish that:
- every trust lacks a creditor;
- every servicer lacks authority;
- every mortgage note was destroyed;
- or mortgage enforcement is universally impossible.
Its relevance is narrower but still important: it demonstrates that courts may be required to look through the certificate structure and examine the legal relationships among trusts, servicers, underlying mortgages, and beneficiaries.
11.9. Cashmere Valley Bank v. Washington Department of Revenue
Paatalo also cites Cashmere Valley Bank v. Washington Department of Revenue, 181 Wn.2d 622, 334 P.3d 1100 (2014).
The Washington Supreme Court examined the nature of interests held in mortgage-backed securities in a tax context.
The case is relevant because it distinguishes between:
- ownership of underlying mortgage loans;
- ownership of certificates;
- and rights to payment streams generated by mortgage pools.
It supports the need to avoid treating an investor’s beneficial or economic interest in mortgage-backed securities as automatically equivalent to direct ownership or possession of each underlying promissory note.
At the same time, the decision does not determine every enforcement question arising under Article 3 or the Washington Deed of Trust Act.
Its holding must not be extended beyond the tax and ownership issues actually decided.
11.10. MERS as Nominee for an Uncertain or Unidentified Principal
Paatalo’s analysis describes MERS as a nominee for what he calls an “empty class.”
His argument is that a nominee or agent cannot possess greater substantive rights than the principal for whom it acts.
Therefore, if the actual creditor cannot be identified, if the note was never transferred, or if the alleged principal lacks enforcement rights, MERS cannot create those missing rights through a database entry or assignment.
This proposition must be tested through the specific agency relationship.
The necessary questions include:
- Who was the principal when MERS acted?
- Did that principal own the economic interest?
- Was that principal entitled to enforce the note?
- Did MERS have contractual authority to act for that principal?
- Did the person executing the MERS assignment possess valid authority?
- Was the assignment limited to the deed of trust?
- Did it purport to transfer the note?
- Could the assigning entity transfer rights it did not possess?
- Was the beneficiary identified at the time required by Washington law?
A MERS assignment should not be treated as self-proving evidence of the complete chain.
It is one document that must be compared with:
- the promissory note;
- endorsements;
- allonges;
- custodial records;
- the MERS milestone history;
- pooling and servicing agreements;
- mortgage loan schedules;
- assignments;
- servicing-transfer records;
- and testimony establishing authority and personal knowledge.
11.11. The REMIC Argument
Paatalo argues that the federal tax rules governing Real Estate Mortgage Investment Conduits — REMICs — create structural restrictions upon late transfers or reacquisition of mortgage loans.
His study examines:
- qualified-mortgage requirements;
- startup-day restrictions;
- taxes on prohibited transactions;
- taxes on certain post-startup contributions;
- and the static nature of REMIC pools.
These provisions may be highly relevant to determining whether a claimed late transfer was:
- contemplated by the trust documents;
- consistent with REMIC tax treatment;
- a permitted substitution;
- a cure of a defect;
- or a transaction carrying adverse tax consequences.
Nevertheless, a tax violation or inconsistency does not automatically establish, in every jurisdiction, that a borrower may invalidate the transfer.
Courts have differed over:
- whether borrowers have standing to challenge violations of pooling and servicing agreements;
- whether a defective transfer is void or merely voidable;
- whether REMIC noncompliance affects enforcement;
- and who may invoke the trust’s governing law.
The REMIC analysis should therefore be used to demand documentary and legal explanations, not to presume the result without examining the applicable trust law, tax law, contract, and precedent.
11.12. The “Half-Ledger” and Accounting Consistency
Paatalo further argues that mortgage securitization may produce what he calls a half-ledger.
Under this theory, institutions recognize:
- proceeds from the sale;
- gains related to securitization;
- servicing income;
- certificate proceeds;
- or other financial benefits,
while later asserting enforcement rights that are inconsistent with the earlier accounting treatment.
This raises legitimate questions of consistency:
- Which entity booked the loan as an asset?
- Which entity derecognized it?
- Which entity reported income?
- Which entity recorded the receivable?
- Which entity claimed the loss?
- Which entity issued certificates?
- Which entity reported the loan as a trust asset?
- Which entity claims to be the creditor in court?
No single accounting entry necessarily resolves the enforcement question.
But inconsistencies across:
- financial statements;
- SEC filings;
- call reports;
- servicing records;
- trust reports;
- tax filings;
- and foreclosure affidavits
may provide substantial evidence for discovery, impeachment, estoppel arguments, or challenges to the credibility of the asserted chain.
11.13. The Limits of Paatalo’s Universal Conclusion
Paatalo states that securitization and destruction of original notes rendered mortgage enforcement structurally impossible.
That conclusion must be presented as his legal thesis, not as an already settled rule applicable to every securitized mortgage.
Washington law recognizes several possible categories of persons entitled to enforce a note.
It also permits enforcement of a lost or destroyed instrument when the statutory elements are proved.
Therefore, a legally precise conclusion is:
Securitization does not automatically make enforcement impossible, but it may create structural fragmentation that makes lawful enforcement impossible unless the claimant can prove the particular legal route through which it acquired the right to enforce.
The burden should remain on the claimant to demonstrate:
- the applicable note;
- its terms;
- possession or the lawful excuse for nonpossession;
- the complete transfer history;
- the endorsements and allonges;
- the identity of the person entitled to enforce;
- the agency authority of any servicer or trustee;
- compliance with the deed of trust;
- and protection against inconsistent or duplicate claims.
Paatalo’s work is most persuasive when understood as a documentary roadmap for testing those elements.
11.14. Relationship to Sérgio Jacomino’s Registral Analysis
Paatalo’s investigation provides the concrete documentary counterpart to Sérgio Jacomino’s registral theory.
Jacomino warns that:
“Data are not information. Information is not certainty. Certainty is not trust. Registral publicity is legal certainty.”
Paatalo describes a mortgage system in which:
- the original paper may be missing or destroyed;
- transfers may be recorded only in private databases;
- the public record may continue to display a nominal entity;
- the economic owner may be separated from the servicer;
- the servicer may be separated from the document custodian;
- the trustee may rely on records created by others;
- and the foreclosure witness may possess neither personal knowledge nor custody of the original transaction.
Jacomino supplies the governing registral principle:
A private informational representation is not the same thing as a publicly qualified legal right.
Paatalo supplies the evidentiary investigation:
If the original note, endorsements, delivery records, custodial chain, trust records, and public assignments do not support the claimed right, the private database cannot cure the defect merely by declaring that the claimant is authorized.
The two analyses converge upon the same essential proposition:
Technology may preserve data about a claimed right, but only legally valid evidence can establish the right itself.
11.15. Documents That Must Be Obtained After Paatalo’s Analysis
In light of Paatalo’s paper, a complete investigation of a securitized mortgage should seek:
- the original promissory note;
- a forensic-quality image of the note;
- every endorsement;
- every allonge;
- evidence showing when each endorsement was created;
- evidence showing whether each allonge was attached;
- the complete custodial file;
- document-custodian certifications;
- exception reports;
- bailee letters;
- receipts for physical delivery;
- the mortgage loan purchase agreement;
- the pooling and servicing agreement;
- the mortgage loan schedule;
- the trust closing date;
- SEC prospectuses and supplements;
- Form 8-K exhibits;
- servicing-transfer histories;
- MERS milestone reports;
- MERS member and certifying-officer authority;
- assignments of the deed of trust;
- appointments of successor trustee;
- notices of default;
- beneficiary declarations;
- lost-note affidavits or certifications;
- insurance and indemnification agreements;
- financial statements reflecting derecognition;
- trust reports to certificateholders;
- REMIC tax documents;
- bankruptcy proofs of claim;
- prior foreclosure complaints;
- prior copies of the purported note;
- signature and notarial records;
- testimony identifying the source of the witness’s knowledge;
- and all versions of the note filed in different proceedings.
These documents must be chronologically compared.
Particular attention should be given to:
- changing endorsements;
- newly appearing allonges;
- different versions of the note;
- inconsistent trust names;
- dates after the trust closing date;
- assignments executed shortly before foreclosure;
- signers acting for multiple entities;
- MERS officers employed by servicers;
- lost-note declarations contradicted by later production;
- and affidavits based exclusively on electronic systems without personal knowledge of the underlying transfers.
11.16. Conclusion Regarding Paatalo’s Contribution
Bill Paatalo’s paper significantly strengthens the documentary dimension of this analysis.
It does not merely criticize MERS as a private database.
It asks whether the mortgage-securitization system preserved the legal and evidentiary elements necessary to identify:
- the creditor;
- the person entitled to enforce;
- the holder or nonholder in possession;
- the entity that lost the note;
- the person that delivered it;
- the trust that allegedly received it;
- the custodian responsible for it;
- and the witness competent to testify about it.
His universal conclusion that enforcement became structurally impossible must be tested against the applicable statutes and facts of each case.
But the structural problem he identifies cannot be dismissed:
When ownership, possession, servicing, custody, beneficial interest, public registration, and foreclosure authority are divided among different actors, no court should presume that the actor appearing at the end of the chain possesses the legal authority that existed at its beginning.
The claimant must prove the chain.
The homeowner should not be required to reconstruct, on behalf of the financial industry, a chain that the industry itself was legally and contractually required to create, preserve, and produce.
12. CONGRESS ITSELF RECOGNIZED THE RISK TO THE CHAIN OF TITLE
The Congressional Oversight Panel warned that documentary irregularities could affect not only the foreclosure, but also the ownership of properties subsequently sold.
If the entity that foreclosed did not possess the note or the mortgage, the sale might not transfer secure title to the subsequent purchaser.
The report explained that both the note and the security instrument had to be properly transferred. Without the note, the security might be unenforceable; without the security, the note would merely be an obligation without the property as collateral. (govinfo.gov)
This official recognition demonstrates that the problem was not limited to the relationship between bank and debtor.
It could contaminate:
- the foreclosure;
- the trustee’s deed;
- the resale;
- title insurance;
- and the entire subsequent chain of ownership.
13. MILLIONS OF FAMILIES AFFECTED
The foreclosure crisis affected millions of people.
Later Senate hearings recorded that more than four million homes had been lost to foreclosure since 2008 and that many could have been preserved if the servicing and review systems had functioned adequately. (govinfo.gov)
The consequences were not merely economic.
The loss of a residence causes:
- family disintegration;
- illness;
- depression;
- loss of employment;
- forced displacement;
- school disruption;
- loss of community networks;
- impoverishment;
- and destruction of intergenerational wealth.
The procedural asymmetry was also profound.
On one side were:
- banks;
- trusts;
- servicers;
- large law firms;
- platforms;
- custodians;
- and automated structures.
On the other:
- a family;
- a notice of sale;
- and a few days to understand a securitization chain built over years.
14. SCOTT ERIK STAFNE’S DENUNCIATION
Scott Erik Stafne maintains that the problem was not merely banking-related.
It was institutional.
Public records existed to allow society to identify the holders of rights in real property.
MERS, however, allowed the industry to use the records merely as a nominal façade, while maintaining the economic chain in a private environment.
According to Scott, authorities and courts began to accept:
- copies;
- declarations;
- assignments;
- and presumptions
without requiring, in every case, a complete demonstration of the origin, transfer, and possession of the note.
Scott’s criticism directly reaches the role of the Judiciary.
A court cannot treat a bank’s assertion as equivalent to proof of the right.
Nor can it prevent the homeowner from examining:
- the original document;
- its age;
- the endorsements;
- the chain of custody;
- and the authority of those who signed the assignments.
When evidence is replaced by presumptions in favor of the financial institution, the foreclosure ceases to be the lawful exercise of a proven right and becomes the enforcement of a documentary narrative.
15. ELENA’S DENUNCIATION
Elena denounces that the process of acquiring, financing, servicing, and losing homes was progressively handed over to automated systems.
Robots and algorithms:
- evaluate credit;
- classify risk;
- calculate charges;
- distribute payments;
- identify defaults;
- produce communications;
- route proceedings;
- and organize documents.
Below is a cleaned, publication-ready version. I preserved the substance while removing repetition, correcting grammar, clarifying the chronology, and distinguishing allegations, assumptions, and documented facts.
DEBT VALIDATION REQUEST, QUALIFIED WRITTEN REQUEST, AND DEMAND FOR DISCLOSURE
To: Anthony DeClercq and Cheryl D. Cook
Potestivo & Associates, P.C.
By email and mail
Dear Mr. DeClercq and Ms. Cook:
This correspondence constitutes:
- a Debt Validation Request under the Fair Debt Collection Practices Act;
- a Qualified Written Request under the Real Estate Settlement Procedures Act;
- and a demand for disclosure under the Truth in Lending Act.
I request that you disclose the information identified below and provide copies of the relevant documents.
1. Foreclosure activity scheduled for June 4, 2026
In May 2026, Potestivo & Associates and attorney Anthony DeClercq entered into an arrangement with Detroit Legal News, LLC (“DLN”) in connection with a foreclosure sale of my property scheduled for June 4, 2026.
The authority under which these parties acted, and the documents upon which they relied, were not disclosed to me, despite my repeated requests.
DLN, in turn, apparently engaged or instructed:
- The Banner of Hastings to publish a foreclosure notice;
- local auctioneer Mark Sheldon to conduct the sale;
- and a process server to deliver and post the notice at my residence.
According to information provided to me by Mr. Sheldon, a representative of The Banner, and the process server, DLN employee Anna Graham supplied documents to Mr. Sheldon, instructed him to conduct the sale, and directed him to return the documents to DLN afterward.
Potestivo & Associates paid Mr. Sheldon by corporate check. I understand that Potestivo may also have paid DLN and the process server, although I have not yet received records confirming those payments.
I dispute the legal sufficiency of the published notice and contend that the foreclosure activity did not comply with Michigan Compiled Laws § 600.3204.
2. Failure to identify the lawyer and source of authority
I repeatedly attempted to determine:
- why DLN was coordinating significant aspects of the foreclosure if another entity claimed to be the mortgage servicer;
- which individual attorney had been retained and assigned to the foreclosure;
- and whether that attorney possessed a valid power of attorney or other written authorization.
Employees answering calls under the name “PennyMac Loan Services, LLC” were unable to identify the individual attorneys allegedly representing PennyMac in the foreclosure and bankruptcy matters. Relevant recordings are attached.
Attorney Cook stated that she had been advised that the foreclosure sale was not completed. However, I possess documents from multiple parties, including documents attributed to PennyMac, that appear inconsistent with that statement.
I repeatedly asked Potestivo & Associates to identify the responsible attorney but did not receive a substantive response. I later identified attorney DeClercq, who stated that reinstatement funds following the foreclosure activity should be paid to him rather than directly to PennyMac.
3. Disputed amounts and charges
I dispute the amount of $109,287.53 published or asserted in connection with the foreclosure.
The claimed balance appears to include amounts that I had already paid to Chapter 13 Trustee Elizabeth Clark, including payments made after PennyMac allegedly closed the account in May 2025 and after the Trustee allegedly failed to transmit payments beginning no later than September 2024.
The amount also appears to include disputed or unexplained charges, including:
- alleged litigation fees for litigation I do not recognize;
- foreclosure-title charges;
- a “bankruptcy confirmation” charge of $692.41, billed on July 10, 2026;
- charges connected with a new proof of claim in the later bankruptcy proceeding;
- property-inspection fees duplicating amounts included in attorney Cook’s January 9, 2023 proof of claim;
- and other miscellaneous or unsupported fees.
I have also been billed for what appear to be multiple foreclosure proceedings on loans described as current, additional title charges, at least three separate foreclosure-title charges totaling approximately $1,250, and a charge described as “Vendor Property Registration.”
I request complete documentation explaining each charge.
The description “Vendor Property Registration” raises additional concerns about whether the property was treated as foreclosed, transferred, vacant, abandoned, or registered by an unidentified third party. I do not accept that conclusion without documentary proof, but the charge requires a full explanation.
REQUESTS FOR INFORMATION AND DOCUMENTS
1. Identity of the owner of the obligation
Identify the current owner of the obligation and the entity that:
- paid value for the debt;
- funded or disbursed the loan proceeds;
- currently owns the account receivable;
- and claims the economic right to receive payment from me.
2. PennyMac’s claimed interest
State whether it is your position that PennyMac Loan Services, LLC:
- paid value for the underlying obligation;
- owns the account receivable;
- owns any interest in the indebtedness;
- or acts solely as a servicer or agent.
Provide the documents supporting your response.
3. Authority to conduct the June 4, 2026 foreclosure
State whether PennyMac hired or authorized:
- Potestivo & Associates;
- Anthony DeClercq;
- Cheryl D. Cook;
- Detroit Legal News, LLC;
- Mark Sheldon;
- The Banner of Hastings;
- or the process server
to participate in the foreclosure activity scheduled for June 4, 2026.
Produce all documents evidencing such authority, including:
- powers of attorney;
- servicing agreements;
- engagement or retention agreements;
- corporate resolutions;
- foreclosure referrals;
- written instructions;
- agency agreements;
- and communications from the owner of the obligation.
Also provide the applicable Pooling and Servicing Agreement and any retention agreement relied upon to impose attorney, foreclosure, publication, title, auctioneer, property-registration, or related charges upon my account.
4. Reinstatement funds
Attorney DeClercq claimed authority to collect reinstatement funds and directed that such funds be paid to him.
Please identify:
- the person or entity legally entitled to receive those funds;
- the account into which the funds would have been deposited;
- whether attorney DeClercq would have retained any portion;
- the entity to which the balance would have been transmitted;
- and the written instructions governing receipt and disbursement of the funds.
5. Payment records
Produce for inspection and copying:
- cancelled checks;
- wire-transfer receipts;
- ACH records;
- electronic funds-transfer confirmations;
- remittance records;
- payment histories;
- suspense-account records;
- and records of transfers to or from PennyMac relating to this matter.
In particular, produce documentation reflecting the receipt and application of the wire transfer I sent on May 27, 2026.
The records currently available to me appear to show that my payments and the Trustee’s payments were transmitted to entities other than PennyMac. Please identify every entity that received any portion of those funds.
6. Foreclosure-title and property-registration records
Provide copies of:
- every foreclosure title;
- every sheriff’s deed, trustee’s deed, or equivalent instrument;
- every property-registration record;
- every vendor property registration;
- every title report;
- every title commitment;
- every invoice;
- every itemized bill;
- and every record showing payment or reimbursement of those charges.
Identify who ordered each service, who performed it, who paid for it, and why the charge was assessed to my account.
7. Claimed beneficiary, trust, investor, and servicing authority
Michigan Compiled Laws § 600.3204 requires that the party foreclosing be:
“the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage.”
Attorney Cook and MERS-related records have reportedly identified Ginnie Mae, a Ginnie Mae trust, and The Bank of New York Mellon as investor, trustee, or interested entities.
Accordingly, provide all documents explaining:
- why DLN and attorney DeClercq participated in or coordinated the foreclosure;
- whether either acted as a servicer, agent, contractor, or debt collector;
- the identity of the actual owner or holder of the indebtedness;
- the identity of the trust;
- the identity of the trustee;
- and the legal basis upon which each entity claimed authority to foreclose.
Disclose:
- the full name of the trust;
- the trust series;
- the CUSIP number, if applicable;
- the date on which my loan was allegedly transferred into the trust;
- the mortgage loan schedule or other document identifying my loan;
- and all documents evidencing delivery, transfer, endorsement, assignment, or custody of the promissory note and mortgage.
8. Caliber allonge
Disclose the source of the allonge attributed to Caliber Home Loans that was provided to me by attorney Haack.
State:
- who created it;
- when it was executed;
- when it was attached to the note;
- who delivered it;
- who received it;
- whether PennyMac supplied it;
- whether Potestivo or its attorneys received it from PennyMac;
- and whether it was in existence before the foreclosure and bankruptcy proceedings.
Produce all transmittal records, custodial records, communications, and document histories relating to the allonge.
9. Authorized representative
Provide the full name, title, employer, business address, telephone number, and email address of the authorized employee or representative of the owner of the obligation who:
- supplied the documents;
- issued the foreclosure instructions;
- approved the charges;
- and authorized Potestivo, DLN, Mr. Sheldon, and any other contractor to act.
10. Complete accounting
Provide a complete, life-of-loan accounting showing:
- all principal payments;
- all interest payments;
- all escrow payments;
- all Trustee payments;
- all suspense-account activity;
- all corporate advances;
- all property-inspection charges;
- all legal fees;
- all foreclosure costs;
- all title charges;
- all bankruptcy charges;
- all property-preservation charges;
- and all amounts paid, waived, reversed, reimbursed, or transferred.
For every charge, identify:
- the date;
- the amount;
- the service performed;
- the person or company performing it;
- the invoice;
- the person approving it;
- and the contractual or statutory authority for assessing it against me.
Please preserve all records, recordings, emails, electronic logs, metadata, payment records, foreclosure instructions, corporate resolutions, powers of attorney, MERS records, custodial records, and documents relating to this matter.
Sincerely,
Elena Fedorova
ATTACHMENTS
- Communications from Mark Sheldon
- Communications from Anthony DeClercq
- Financial records and account statements
- Telephone recordings involving PennyMac representatives
- Published foreclosure notice
- Caliber allonge
- Checks, wire-transfer records, and Trustee payment records
- Documents concerning foreclosure-title charges
- Vendor Property Registration charge
- Relevant bankruptcy proofs of claim and account histories
Note concerning foreclosure title in Michigan
Following a foreclosure sale, the purchaser may acquire an interest subject to the statutory redemption period. During that period, the mortgagor may retain possession and the statutory right to redeem the property. The precise legal status of title depends on the foreclosure documents, the governing statute, whether a sale was actually completed, and whether the redemption period expired.
Automation can be useful.
But it has no consciousness, moral responsibility, or legal capacity of its own.
The problem arises when human supervision becomes merely formal.
The robo-signer was the symbol of this degeneration.
It was not necessarily a machine.
It was a human being transformed into a mechanical extension of the system.
The person signed without reading.
Declared without knowing.
Certified without verifying.
Thus, automation did not eliminate human responsibility.
It merely dispersed it until it became difficult to identify who actually decided, verified, authorized, or lied.
16. THE TORRENS SYSTEM IN THE STATE OF WASHINGTON
Washington adopted, in 1907, an optional Torrens system, parallel to the ordinary document-recording system.
Both systems were maintained in the offices of the county auditors, but they had different legal natures.
In the ordinary system, instruments forming part of a documentary chain were recorded.
Under Torrens, the property entered a special title-registration system.
Subsequent transactions affecting title had to be registered in that system.
The model sought to provide a more concentrated public declaration concerning the legal status of the property.
It provided for:
- title examination;
- judicial participation;
- a certificate;
- control of transfers;
- recording of mortgages;
- recording of liens;
- foreclosure procedures;
- an assurance fund;
- and penalties for falsehood, fraud, and forgery.
Torrens did not eliminate every dispute.
But its institutional logic differed from the mere accumulation of documents.
17. THE EXTINCTION OF TORRENS IN WASHINGTON
House Bill 1376, enacted as Chapter 66, Laws of 2022, repealed the Washington Torrens Act in its entirety.
The law partially took effect in 2022, and the provisions closing the system became effective on July 1, 2023.
Owners were informed that:
- the system would be discontinued;
- the properties would cease to be subject to Torrens;
- withdrawal certificates would be issued;
- liens, mortgages, and other outstanding rights would be transferred to the ordinary system;
- and the validity and priority of prior rights would not formally be affected. (lawfilesext.leg.wa.gov)
The Torrens books, indexes, and files were to be closed and incorporated into the permanent deed records of the counties.
Therefore, the law did not order the physical destruction of the files.
But it extinguished the special legal system of title registration.
18. PRESERVING THE BOOKS IS NOT PRESERVING THE INSTITUTION
The distinction is essential.
House Bill 1376 ordered the preservation of the files.
But the Torrens legal regime ceased to exist.
Preserving an old volume is not the same as maintaining:
- the possibility of registration under Torrens;
- the certificate of title as the center of the system;
- the specific qualification procedure;
- the assurance fund;
- and the institutional logic of title registration.
The State preserved historical documents.
But it abandoned the regime that sought to proclaim the legal status of title through a special public system.
Washington came to depend entirely on the ordinary document-recording system, precisely after decades of controversies involving:
- MERS;
- securitization;
- lost notes;
- robo-signing;
- questionable assignments;
- and foreclosures promoted through incomplete private chains.
19. SÉRGIO JACOMINO: DATA ARE NOT RIGHTS
In Brazil, Sérgio Jacomino has formulated a preventive criticism against the replacement of the registral institution by databases, platforms, tokens, and electronic flows.
In “Data are not information. Information is not certainty,” published on July 7, 2026, Jacomino states:
Data are not information. Information is not certainty. Certainty is not trust. Registral publicity is legal certainty.
His central argument is that the abundance of data does not, by itself, produce legal truth.
A system may store billions of pieces of information and remain incapable of answering:
- who the holder is;
- what right exists;
- how it was acquired;
- whether the transferor could dispose of it;
- and whether the acquisition is enforceable against third parties.
Jacomino criticizes “dataism”: the belief that technological sophistication replaces legal legitimacy.
A token may be immutable.
A blockchain may be auditable.
A database may record all transactions.
But if the right never came into existence or if the transferor did not possess it, the system merely preserves legally false information. (cartorios.org)
20. MERS AND TOKENIZATION: DIGITAL REPRESENTATIONS ARE NOT TITLE
MERS and real estate tokenization are not the same thing.
But they share a structural risk.
In MERS, a private platform reports who would be the servicer or economic owner.
In tokenization, a platform reports who controls a certain token.
In both, the user may confuse:
- control of the representation;
- with ownership of the represented right.
Recording information does not automatically transform that information into a right.
The platform may be correct.
But it may also reproduce:
- error;
- fraud;
- a nonexistent assignment;
- a false identity;
- nonexistent authority;
- or an invalid transaction.
Technology ensures transmission of the data.
It does not necessarily ensure the legal truth of the data.
21. “INDISPOSING MYSELF WITH AFFECTION”: THE MOUNTAIN OF USELESS DATA
In “Indisposing Myself with Affection,” Sérgio Jacomino criticizes systems that multiply data, databases, and entries without effectively increasing legal certainty.
He observes that large volumes of administrative information may remain stored for years without producing any concrete effect.
Technology, in that scenario, does not rationalize.
It merely transfers costs and creates redundancy.
This criticism directly dialogues with the American experience.
MERS created an enormous private information database.
The counties maintained their own records.
The servicers had other databases.
The trusts maintained their own documents.
The custodians kept separate files.
The courts received copies and declarations.
The more information existed, the more difficult it could become to identify which source represented the legal reality.
22. THE “ENTROPIC BABEL”
Jacomino describes an architecture in which “nothing talks to anything.”
The expression can be applied to the securitization system:
- the county record shows MERS;
- MERS shows the servicer;
- the servicer points to the investor;
- the trust declares that it owns the note;
- the custodian maintains another file;
- the trustee initiates the sale;
- and the homeowner cannot examine the entire chain.
The information exists in many places.
Certainty exists nowhere.
This is the difference between a data network and a system of legal publicity.
23. LEGAL QUALIFICATION IS NOT USELESS BUREAUCRACY
The Brazilian registrar should not be reduced to a platform operator.
The registrar’s function includes:
- controlling legality;
- verifying continuity;
- examining availability;
- identifying the holder;
- checking specificity;
- controlling form;
- and preventing someone from transferring a right that he or she does not possess.
These functions are often presented as bureaucracy.
But the foreclosure experience demonstrates the price of eliminating them.
When no one carries out substantive control of the chain:
- the document circulates;
- the platform records;
- the bank collects;
- the trustee sells;
- and only afterward is it discovered that ownership was disputed.
The model ceases to prevent fraud.
It merely attempts to repair — when possible — damage already consummated.
24. THE AMERICAN EXPERIENCE AS A WARNING TO BRAZIL
Brazil is rapidly advancing toward:
- electronic registration;
- interoperability;
- central systems;
- tokenization;
- artificial intelligence;
- service platforms;
- data sharing;
- and automation.
These tools may improve the system.
But only if they remain subordinate to the legal function of the Real Estate Registry.
The danger arises when it is claimed that:
- the cadastre replaces the registry;
- the token replaces the property record;
- the platform replaces legal qualification;
- the database replaces the title;
- or artificial intelligence replaces the responsible registrar.
The United States experience demonstrates that a system may be extremely sophisticated and, at the same time, incapable of proving who possesses the right.
25. THE INTERESTED PARTY CANNOT ALONE CONTROL THE EVIDENCE
In the MERS system, the same industry that negotiated the loans controlled the platform that reported the internal changes.
This creates a structural conflict.
Those who sell, buy, service, securitize, collect, and foreclose cannot be the sole source of information concerning ownership.
The evidence must be:
- public;
- independent;
- verifiable;
- auditable;
- accessible;
- and subject to institutional responsibility.
When the interested party controls the database and uses the data from that database as evidence against the homeowner, publicity ceases to be a guarantee and becomes self-declaration.
26. THE PRINCIPLE OF CONTINUITY
The principle of continuity answers a simple question:
Does the person transferring the right legally appear as the holder of the right being transferred?
If the answer is negative, the transfer should not enter the registry.
This logic prevents a person or company from:
- selling what it does not possess;
- creating security without title;
- transferring a nonexistent right;
- or retrospectively creating a chain through documents produced after the facts.
In the foreclosures challenged by Scott, the central problem is precisely continuity:
- who delivered the note?
- to whom?
- on what date?
- with what endorsement?
- did the trust receive the document?
- did the security follow the obligation?
- did the person appointing the trustee have authority?
- was the person selling the home truly the beneficiary?
Without proven answers, there is no chain.
There is a narrative.
27. THE ROLE OF THE COURTS
The courts are the final barrier against the improper loss of property.
But that function is fulfilled only when the judge requires evidence.
It is not enough to state that the debtor failed to pay.
The existence of default does not prove that any entity may foreclose.
The alleged creditor must demonstrate:
- its own standing;
- acquisition of the obligation;
- regularity of the transfer;
- authority of the agent;
- and compliance with the legal procedure.
Otherwise, the Judiciary transforms a possibly existing debt into authorization for any participant in the chain to take the property.
Due process requires more.
28. LEGAL UNCERTAINTY IS NOT MERELY THEORETICAL UNCERTAINTY
The expression “legal uncertainty” may appear abstract.
In the real estate field, it means:
- not knowing who the creditor is;
- not knowing who may give a discharge;
- not knowing who may release the security;
- not knowing whether the debt was sold;
- not knowing whether the note exists;
- not knowing whether the assignment is authentic;
- not knowing whether the foreclosure conveyed valid title;
- and not knowing whether the subsequent purchaser will be able to keep the property.
Registral uncertainty affects:
- homeowners;
- purchasers;
- investors;
- municipalities;
- insurers;
- banks;
- courts;
- and the entire economy.
The public registry exists to prevent every real estate transaction from becoming an archaeological investigation or a lawsuit.
29. THE QUESTION TO BRAZIL: “AM I YOU TOMORROW?”
The title of this article is not merely a provocation.
It is an institutional warning.
Sérgio Jacomino today describes the risks of:
- platformization;
- fragmentation;
- redundancy;
- tokenization;
- hypertrophy of data;
- weakening of qualification;
- and transformation of the registry into a data center.
Scott Erik Stafne confronts, in the courts, the result of a similar transformation that occurred in the United States:
- emptied public records;
- private chains;
- vanished original instruments;
- mass-produced documents;
- signatures without knowledge;
- and families removed from their homes.
What Jacomino presents as a theoretical and institutional warning, Scott presents as concrete experience.
For this reason, Brazil must ask:
Are we modernizing the Real Estate Registry or removing from it precisely what produces legal certainty?
30. CONCLUSION
The foreclosure crisis did not arise from a single fraud.
It resulted from an architecture.
First, loans were originated on a mass scale.
Then, they were securitized and resold.
MERS allowed economic changes to occur without public recording of each assignment.
The original notes were dispersed, lost, or, according to allegations presented in Washington proceedings, destroyed after digitization.
When homeowners stopped paying, banks and servicers needed to prove rights that the public system no longer fully demonstrated.
There emerged:
- lost note affidavits;
- retrospective assignments;
- questionable endorsements;
- false documents;
- and robo-signing.
Public agencies recognized widespread failures.
Federal settlements prohibited the intentional destruction of notes still in force and imposed controls on assignments.
Even so, millions of families had already lost their homes.
Washington later extinguished its Torrens system and transferred the remaining properties to the ordinary document-recording system.
In Brazil, Sérgio Jacomino warns that preserving data is not enough.
It is necessary to produce legal certainty.
His warning must be read in light of Scott Erik Stafne’s experience:
When the registry ceases to proclaim rights and begins merely to accumulate information, falsehood may circulate at the same speed as truth.
Brazil should not reject technology.
It should subordinate it to Law.
Artificial intelligence, APIs, blockchain, tokenization, and platforms will only be legitimate if they:
- preserve the property record;
- respect continuity;
- maintain legal qualification;
- allow public auditing;
- identify those responsible;
- and prevent the interested party itself from unilaterally fabricating proof of its right.
The Real Estate Registry is not an obstacle to the market.
It is the institution that prevents the market from destroying the property it claims to finance.
The final question remains:
“AM I YOU TOMORROW?”
Will Brazil learn from the American experience — or will it repeat the path that transformed private databases, mass-produced documents, and automated platforms into instruments for taking the homes of millions of people?
31. REFERENCES
JACOMINO, Sérgio. Data are not information. Information is not certainty. Observatório do Registro, July 7, 2026. (cartorios.org)
JACOMINO, Sérgio. Registral Public Faith — Sleepless Notes. Registry Observatory, July 9, 2015. Available at: https://cartorios.org/2015/07/09/fe-publica-registral-notulas-insones/. Accessed on: July 19, 2026.
JACOMINO, Sérgio. Past and Future Are Linked by a Great Generational Bridge. Registry Observatory, December 11, 2018. Available at: https://cartorios.org/2018/12/11/passado-e-futuro-se-ligam-numa-grande-ponte-geracional/. Accessed on: July 19, 2026.
JACOMINO, Sérgio. Dialogues Under the Pomegranate Trees. Registry Observatory, June 7, 2026. Available at: https://cartorios.org/2026/06/07/dialogos-sob-as-romazeiras/. Accessed on: July 19, 2026.
JACOMINO, Sérgio. Disagreeing, With Affection. Text written in 2012 and published on June 19, 2026. Registry Observatory. Available at: https://cartorios.org/2026/06/19/indispondo-me-com-carinho/. Accessed on: July 19, 2026.
JACOMINO, Sérgio. Data Are Not Information. Information Is Not Certainty. Registry Observatory, July 7, 2026. Available at: https://cartorios.org/2026/07/07/dados-nao-sao-informacao-informacao-nao-e-certeza/. Accessed on: July 19, 2026.
WASHINGTON STATE LEGISLATURE. House Bill 1376, Chapter 66, Laws of 2022 — Land Titles—Torrens Act Repeal. (lawfilesext.leg.wa.gov)
WASHINGTON HOUSE OF REPRESENTATIVES. House Bill Report — HB 1376. (lawfilesext.leg.wa.gov)
WASHINGTON SUPREME COURT. Bain v. Metropolitan Mortgage Group, Inc. (courts.wa.gov)
WASHINGTON COURTS. Proposed Petition for Review — allegations concerning the destruction of the Larsons’ original note. (courts.wa.gov)
WASHINGTON COURT OF APPEALS. Decision in the Larsons’ case, recording the allegations of destruction and forgery of the 2006 note. (courts.wa.gov)
WASHINGTON COURTS. Petition for Discretionary Review — Alvin White case. (courts.wa.gov)
UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE. Mortgage Foreclosures: Documentation Problems Reveal Need for Ongoing Regulatory Oversight. (gao.gov)
UNITED STATES DEPARTMENT OF JUSTICE. Consent Judgment — National Mortgage Settlement. (justice.gov)
UNITED STATES CONGRESS. Robo-Signing, Chain of Title, Loss Mitigation, and Other Issues in Mortgage Servicing. (govinfo.gov)
CONGRESSIONAL OVERSIGHT PANEL. November Oversight Report — Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation. (govinfo.gov)
UNITED STATES DEPARTMENT OF JUSTICE. National Mortgage Servicing Settlement — robo-signing and mortgage servicing abuses. (justice.gov)
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