By John Lux
Introduction
This article discusses some of the legal aspects of the Mortgage Electronic Registration Systems or “MERS” with regard to its potential legal liabilities and how these liabilities may affect related public companies.
We maintain that the potential legal liabilities faced by these companies are very large and may seriously injure their stock prices. We believe that the affiliates of MERS may be held liable for MERS violations based on various legal theories, including conspiracy, and if the courts pierce the corporate veil of MERS.
A list of some of the companies that may be affected is found at the end of this analysis.
MERS
MERS is a private non-stock Delaware member corporation that operates an electronic registry to track servicing rights and ownership of mortgage loans in the United States. MERS acts as a so-called “straw man.” MERS clouds land records as the purported owner of mortgages transferred by lenders, investors and loan servicers. MERS maintains that it eliminates the need to file assignments in the county land records with the purpose of lowering costs for lenders. This naturally reduces county recording revenues from real estate transfers.
Legal Issues Faced by MERS
Not Qualified to do Business in Most States
MERS is not qualified to business in most of the states in which it operates. The problem here is that MERS has allowed itself to be the plaintiff in many hundreds of thousands of mortgage foreclosures in states where it is not qualified to do business and therefore has no standing to sue. Most, 95% or more of these cases, were uncontested and therefore resulted in the loss of the defendants home after a telephone hearing that lasted a few minutes.
Self-Appointment of Officers
Fidelity National Title has to be fighting hard behind the scenes in Courts and with the Banks to make MERS related foreclosures good, since Fidelity National Title had insured many titles of people in the past that bought bad foreclosures.