Dustin A. Zacks: MERS is Dead: Long Live MERS

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MERS is Dead: Long Live MERS

MERS is Dead: Long Live MERS

by Dustin A. Zacks

Mortgage Electronic Registration Systems, Inc. (MERS) has generated substantial controversy and academic analysis about its ubiquitous appearance in countless mortgage foreclosure actions.  As the ostensible mortgagee under millions of borrowers’ home loans, MERS’s unique relationship with lenders, servicers, and homeowners has resulted in widely disparate judicial treatment across the nation.

Although a seemingly large majority of jurisdictions agree with MERS’s various arguments for its standing to foreclose and assign mortgages, courts in three states have recently shown that MERS remains vulnerable to attack.  This Essay examines these recent anti-MERS decisions in the context of the ongoing debate about MERS’s standing, while highlighting the novel approaches taken by the courts in question.

The Article concludes that these cases reveal that MERS remains vulnerable to a single judicial opinion affecting MERS’s arguments (and, therefore, lenders’ and servicers’ foreclosure processes) throughout any given state.  However, the Essay concludes that the fact that these opinions were deemed newsworthy at all indicates that MERS’s role in mortgage foreclosure litigation is unlikely to be halted or significantly hindered on a national scale.

source: connecticutlawreview.org

[ipaper docId=104914599 access_key=key-1a3myngeoydacc8fa3jz height=600 width=600 /]

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5 Responses to “MERS is Dead: Long Live MERS”

  1. Charles Reed says:

    There is one sure fire way that MERS is hurt and that is Washington Mutual Bank government insured loans placed in Ginnie Mae mortgage backed securities because there is no way to put the egg back together as the last contact MERS could have as a lender/assign of whatever was WaMu as Ginnie Mae is cannot be the lien holder of any home mortgage loan because it does not purchase them.

  2. Sarah says:

    MERS remains vulnerable to attack – let’s bring it on!

  3. Lynne kushnir says:

    When Banker’s look at a MERs number they see a code that tells them what bonds and securities are still viable on a particular Title. If it were just a mortgage number they would not be spending billions of dollars defending its importance.
    When a MERS number is no longer active what does it mean? That the Bonds are trading on the open market at auction? As stock certificates? In penny stocks?
    And, What does this do to the Home owner’s Title?

  4. Sarah says:

    Great points Lynne. I think this paper mentions Judges don’t think, but rather act, on what is unknown to them in the face of what is considered typical circumstances. This conduct, if you will, is problematic on so many levels, nothing was typical in the housing boom. But hey, I’m no lawyer, and legal scholars don’t adjudicate – or do they?

  5. Lynne kushnir says:

    How can legal scholars adjudicate? The adjudication is being done by the graduating class of Goldman, and until their attorneys, who have made it impossible to “follow the money” by allowing Wells Fargo to keep all servicing records hidden, are paid enough to work for Homeowners and not just the Banks, there will never be fair adjudication.

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