IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

NUECES COUNTY, TEXAS,
Plaintiff,

v. CIVIL ACTION NO. 2:12-CV-00131

MERSCORP HOLDINGS, INC.,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., and
BANK OF AMERICA, N.A.,
Defendants.
ORDER

EXCERPT:

Under Section 51.0001(4)(A), a mortgagee may be a grantee, beneficiary, owner, or
holder of a security instrument. This fits with the traditional use of the term mortgagee. Under
Section 51.0001(4)(B), a mortgagee may also be a book entry system such as MERS. This
section was added as part of the 2003 amendments to Chapter 51 so that MERS could act on
behalf of its members to conduct foreclosure sales, to authorize mortgage servicers to conduct
foreclosure sales, to appoint substitute trustees to conduct foreclosure sales, and to authorize
mortgage servicers to appoint substitute trustees. However, just because a beneficiary of a
security instrument qualifies as a mortgagee under Section 51.0001(4)(A) and MERS qualifies as
a mortgagee under Section 51.0001(4)(B), does not mean that MERS is a beneficiary of the
security instrument. MERS may be a mortgagee of record for purposes of foreclosure, but not
every mortgagee is a beneficiary.2

Section 51.0001(4) does not redefine MERS as a grantee, beneficiary, owner, or holder of
a security instrument as urged by Defendants; nor does it indicate an intent on the part of the
Legislature to permit MERS to be indexed as a substitute grantee in the county property records

2. Allegations Demonstrate That Deeds of Trust Are Fraudulent Liens or
Claims Against Real Property or an Interest in Real Property

Defendants assert that MERS is a valid mortgagee or beneficiary, and therefore,
Plaintiff’s cause of action under Section 12.002 of the Texas Civil Practice and Remedies Code
must be dismissed because the MERS security instruments filed with the County do not
constitute a “fraudulent lien or claim against real or personal property.” (D.E. 27 at 28.) Plaintiff
responds that the recorded security instruments constituted a fraudulent claim against real
property because MERS never acquired a security interest in the mortgaged properties, and
therefore, the recordings denominating MERS as a beneficiary of the security instruments are
fraudulent. (D.E. 46 at 27–29.)

In Texas, the county clerks are charged with the recording of real property interests and
maintaining an alphabetical index of grantors and grantees for all recorded deeds, powers of
attorney, mortgages, and other instruments relating to real property. TEX. LOCAL GOV’T CODE
§ 193.003. When a document evidencing an interest in property is presented for recordation, the
county clerk is required to index it according to the grantor and grantee. For instance, a deed of
trust is indexed based upon the person granting a security interest in the property (the grantor)
and the person granted a security interest in the property (the grantee). It is standard practice in
Texas for county clerks to list as grantee the person or entity designated as the beneficiary of the
security interest in the deed of trust. (FAC ¶ 16.) The deeds of trust filed by MERS with the
Nueces County Clerk listed MERS as the “beneficiary under this Security Instrument.”
(See FAC ¶ 27 and Pls.’ Exs. 1, 2, and 3 to the FAC.)

Plaintiff alleges that by falsely representing to the County that MERS was the beneficiary
of the security instruments, Defendants caused MERS to be publicly listed as the grantee and/or
grantor in the County’s real property records. (FAC ¶¶ 25, 29, 30, and 42.) Plaintiff alleges that
MERS never acquired a lien in the subject properties; that MERS falsely represented that it was a
beneficiary, grantee, grantor, lender, or the holder or owner of the security instruments for the
properties; and that these misrepresentations were made with the intent that the recorded deeds of
trust be given legal effect and cause MERS to be indexed as the grantee and/or grantor for the
liens. (FAC ¶¶ 15–33, 42, 44.)

As previously discussed, Chapter 51 of the Texas Property Code defines a mortgagee to
include a book entry system such as MERS. TEX. PROP. CODE § 51.0001(4). Under Chapter 51,
“mortgagee” is a term of art primarily used to designate someone with certain rights in the
administration of the foreclosure process. See, e.g., TEX. PROP. CODE §§ 51.0025, 51.0075. This
may be the actual lienholder, or a book entry system such as MERS. There is no dispute that
MERS is a mortgagee, as that term is used in Chapter 51, with the right to act as an agent or
nominee of the grantee, beneficiary, owner, or holder of a security instrument in the case of
foreclosure. See TEX. PROP. CODE § 51.0001(1). MERS does not, however, hold any beneficial
interest in the deeds of trust, and it is not a beneficiary of the deeds of trust. It is merely an agent
or nominee of the beneficiary.

The false assertion of a legal right in property where none exists may constitute a
fraudulent lien or claim against real estate in violation of Section 12.002 of the Texas Civil
Practice and Remedies Code. See Casstevens v. Smith, 269 S.W.3d 222, 234 (Tex. App.—
Texarkana, 2008, pet. denied). By having itself designated as the “beneficiary under the security
instrument” in the deeds of trust presented to the County Clerk for recordation in the County’s
property records, knowing that it would be listed as the grantee of the security interest in the
property, it appears that MERS asserted a legal right in the properties. The Court concludes that,
viewing the FAC’s allegations in the light most favorable to Plaintiff, one could plausibly infer
that the recorded deeds of trust constituted fraudulent liens or claims against real property or an
interest in real property.

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