LISTENING TO CASSANDRA: THE DIFFICULTY OF RECOGNIZING RISKS AND TAKING ACTION
Carol A. Needham* FORDHAM LAW REVIEW

Presumably,
courts will arrive at a consensus regarding whether to permit foreclosures when the entity seeking to foreclose is either an investor holding only one slice of a loan (rather than the entire obligation) or a nonlending servicing representative, such as Mortgage Electronic Registration Systems, Inc. (MERS), which is a nominee for the lender and its successors in interest but has no lending relationship with the borrower.5

more than just assignment of the deed alone; the note must also be assigned. . . . MERS
purportedly assigned both the deed of trust and the promissory note . . . . However, there is no evidence of record that establishes that MERS either held the promissory note or was given the authority . . . to assign the note.” (citations omitted)); In re Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal. 2008) (“MERS presents no evidence as to who owns the note, or of any authorization to act on behalf of the present owner.”); Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 166 (Kan. 2009).

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