MERSCORP Holdings, Inc. April 2013 News Summary

MERSCORP Holdings, Inc. April 2013 News Summary

Reston, Virginia – May 2, 2013 – (RealEstateRama) — Below is a monthly summary of major legal decisions involving either the use of the MERS® System database or Mortgage Electronic Registration Systems, Inc. (MERS) and its role in the mortgage process.  Please feel free to contact the ">Office of Communications at MERSCORP Holdings, Inc. with any questions and visit the MERS Newsroom for a full list of news releases.

Major Developments

Idaho

  • Idaho Supreme Court: MERS Meets Definition of Beneficiary, April 26, 2013
    “Justice Eismann, joined by Chief Justice Roger Burdick and Justices Joel D. Horton, Jim Jones and Warren E. Jones, quoted directly from the subject MERS deed of trust in this case in which MERS is identified as beneficiary ‘as a nominee for Lender and Lender’s successors and assigns’ and found that a nominee is a form of an agent and that an agent has authority to act on behalf of its principal. Accordingly, the panel found that MERS as an agent of the original lender, Lehman Brothers Bank, FSB (“Lehman Brothers”), and its successors and assigns ‘is the representative of the principal and acts for, in the place of, and instead of, the principal.’ “

Rhode Island

  • MERS’ Role in Rhode Island Affirmed by State Supreme Court, April 12, 2013
    “In reviewing the language contained in the mortgage, the Court found the language to be ‘clear and unequivocal’ when defining MERS as the mortgagee and agreed with the trial justice’s reasoning by finding that ‘the plaintiffs explicitly granted the statutory power of sale and the right to foreclose to MERS,’ and therefore that MERS had the ‘contractual authority to exercise that right.’ “

Oklahoma

  • MERS Wins Dismissal of Recorder Fee Suit, April 30, 2013
    ” ‘[Oklahoma’s recording statutes] clearly have the purpose of providing notice to the world of the asserted interests in property and do not convey a cause of action other than to those with a direct interest in the property or mortgage,’ Judge Walkley wrote. ‘[T]his court finds there is no private right of action to enforce the provision [sought by the Board of County Commissioners].’ “

Michigan

  • MERS Wins Federal Lawsuit in the Sixth Circuit, April 18, 2013
    ” ‘Even were the assignment from MERS to U.S. Bank invalid, thereby creating a defect in the foreclosure process under [Michigan law], Plaintiff has not shown that he was prejudiced,’ Circuit Court Judge Clay wrote. ‘He has not shown [double liability]; he has not shown that he would have been in any better position to keep the property absent the defect; and he has not shown that he has been prejudiced in any other way.’ “

Minnesota

  • MERS Prevails Again in the Eighth Circuit, April 10, 2013
    “In Jerde v. JPMorgan Chase Bank N.A. and Dunbar v. Wells Fargo Bank N.A., Judges Raymond W. Gruender, Bobby E. Sheppard and Roger L. Wollman joined other appeals court and district court judges in rejecting Butler’s ‘show me the note’ theory and other arguments intended to stall valid  foreclosures.”

Other Notable Decisions

Rhode Island

  • RI Superior Court: Plaintiff’s Arguments vs. MERS Consistently Rejected, April 10, 2013
    ” ‘It is well-established that MERS and an assignee of MERS…may properly invoke the statutory power of sale as granted to the mortgagee by the plain, unambiguous language of the Mortgage,’ Justice Rubine held. ‘Plaintiff, through her acknowledgement and execution of the Mortgage, explicitly granted to MERS, and to the successors and assigns of MERS, the right to exercise the statutory power of sale and to foreclose on the Property.’ “

Washington

Oregon

  • Split the Note” Theory Rejected in Oregon, April 5, 2013
    ” ‘Apparently the main basis of the claim pleaded in the complaint is that the note has been securitized and separated from the deed of trust…’ Judge Tiktin wrote. However, Judge Tiktin found that ‘plaintiff has not alleged that the circumstances required ORS 86.735 to non-judicially foreclose a trust deed have not been met [by the defendants] and plaintiff has not pointed to any provision of the non-judicial trust deed foreclosure statutes that requires the presentation of documents, including the note, to the debtor as a prerequisite of proceeding non-judicially.’ “

Michigan

  • Michigan Appeals Court Finds MERS Role Valid, April 15, 2013
    “In Mitchell v. PHH Mortgage Corp., Judges Jane M. Beckering, Kirsten F. Kelley and Joel P. Hoekstra, citing Michigan Compiled Law §600.3201(1), concluded ‘that the foreclosure in this case satisfied the [four-part] requirements…’ of the law.”

Georgia

  • Georgia Court of Appeals Validates MERS’ Role and Authority, April 17, 2013
    “In Larose v. Bank of America, N.A., a majority opinion written by Judge Carla Wong McMillian and joined by Presiding Judge Anne Elizabeth Barnes, Judge Elizabeth L. Branch, Presiding Judge Sara L. Doyle, and Judge William M. Ray II, held that ‘we are bound by the reasoning in this Court’s case of Montgomery v. Bank of America…issued today on this very issue.’ Montgomery, the panel wrote, ‘holds that nothing in Georgia law requires that an assignee of a security deed granting the right to foreclose must also hold the note before initiating foreclosure proceedings.’ “

Montana

  • Montana Court: “Law Permits MERS to Act as Nominee for the Lender,” April 9, 2013
    ” ‘…[N]umerous Montana trial courts have consistently upheld MERS’ legal capacity to exercise the rights granted to it by borrowers in a deed of trust, consistent with the findings of other courts around the nation,’ Judge Brown wrote. ‘Montana law permits MERS to act as nominee for the lender in exercising the rights of a beneficiary under § 71-1-303, MCA, as the Deed of Trust expressly provides in this case.’ “

Other Relevant Cases

For descriptions of cases and other materials pertaining to MERS’ business model and role in U.S. housing, please visit www.mersinc.org.

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MERSCORP Holdings, Inc. is a privately held corporation that owns and manages the MERS® System and all other MERS® products. It is a member-based organization made up of thousands of lenders, servicers, sub-servicers, investors and government institutions. Mortgage Electronic Registration Systems, Inc. (MERS) serves as the mortgagee in the land records for loans registered on the MERS® System, and is a nominee (or agent) for the owner of the promissory note. The MERS® System is a national electronic database that tracks changes in mortgage servicing and beneficial ownership interests in residential mortgage loans on behalf of its members.

Contact:
Jason Lobo
Phone: 703.652.1660
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