Excellent Article on MERS
Loan registry raises legal questions
A small real estate data-management company is the focus of a widening legal controversy that could affect millions of U.S. foreclosures, including thousands filed against distressed homeowners in Utah.
The nation’s largest lenders created Mortgage Electronic Registration Systems (MERS), of Reston, Va., in 1994 as a loan registry designed to save millions of dollars on paperwork and recording fees. By registering mortgages with the private computer-tracking system and, in effect, putting loans under MERS’ name, lenders could avoid having to file public documents each time a mortgage was bought and sold.
The arrangement served its purpose well as markets went up. By MERS’s own estimates, it saved mortgage lenders more than $1 billion during a decade, and the efficiencies it brought to mortgage trading played a key role in the growth of mortgage-backed securities and the housing boom.
But with the economic downturn and crush of foreclosures, MERS is now showing up on tens of thousands of foreclosure notices sent to delinquent homeowners, including nearly 3,000 sent in Utah since July 2008, most of them in Salt Lake County.
Here and nationally, the company’s legal status as a party in these actions is increasingly being challenged.
“This is one of the buried, yet-to-emerge bombs in the whole mortgage crisis,” said Christopher Peterson, a University of Utah law professor and author of the first scholarly analysis of MERS and its legal underpinnings, to be published this spring in the University of Cincinnati Law Review . “This has the potential to fundamentally affect the trajectory of our recovery.”
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‘A tax evasion broker’ » MERS officials vigorously disagree, but Peterson contends the MERS system has violated a deep-seated principle of American law — transparency in land-ownership transactions — by effectively removing much of that information from the public record. In so doing, Peterson says, MERS also has served as “a tax evasion broker,” denying counties millions of dollars in recording fees — revenue that might otherwise have funded essential public services.
And now, by allowing actual lenders to pursue foreclosures under MERS’ name instead of their own, Peterson says the company is acting as a “foreclosure doppelganger.”
“Throughout history, executioners have always worn masks,” the U. professor writes in his article, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System .
“In the American mortgage lending industry, MERS has become the veiled man wielding the home foreclosure ax.”
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continue reading… SLTribune
MERS submitted the following Salt Lake Tribune Letter to the Editor. We have not yet learned whether they will publish it.
“The Tribune’s April 24 article on MERS was filled with errors and missing facts—facts that we had provided to the writer before the article was published.
Contrary to the article’s assertion, MERS does not remove land ownership information from public records because that information was never there to begin with. MERS fills an information void that the county records have never provided. We track the changes in servicing rights and note ownership, and we have helped numerous homeowners find their note owner. In fact, homeowners can contact their mortgage company through MERS and MERS can connect them with the note owner of their mortgage loan when the owner has agreed to be disclosed.
The borrower makes MERS the mortgagee with 100% transparency because they sign a document at closing acknowledging that MERS is the mortgagee. MERS also has a rule requiring that the note be presented at foreclosure.
Finally, the author failed to disclose that the article’s chief MERS critic, Christopher Peterson, is currently employed as a witness against MERS in a pending legal matter. This article provided a disservice to Tribune readers and they deserve better.”