August 22, 2013
The court in Mortgage Electronic Registration Systems, Inc. v. Stephanie Gabler, et al., (Circuit Court of Garland County # 2004-17-II) held that “MERS has standing to seek relief for its Writ of Assistance and is the proper party to foreclose the mortgage as MERS is the mortgagee of record and holder of the promissory note.”
The borrowers claimed that MERS did not own the note, thus they did not have standing. However, the court reasoned that ownership of the note was not required to have standing.
The court held that MERS had standing. MERS subsequently obtained a foreclosure judgment, held the foreclosure sale, and obtained a post-judgment order for writ of assistance to remove the occupants, including the named defendant [Gabler.] Shortly after the writ was obtained in June 2004, the pro se borrowers sought removal to federal court, and the Western District of Arkansas rejected jurisdiction. A subsequent emergency appeal to the 8th Circuit Court of Appeals was also denied. The borrowers then filed for bankruptcy, but voluntarily dismissed the bankruptcy action four months later.
The borrowers then went back to state court in the eviction action and filed an objection to the writ of assistance, a request for injunction, and a counterclaim. The borrowers claimed in their objection that they were not properly served in the foreclosure proceedings and that MERS does not have standing because it is not the owner of the note.
The court rejected all of the contentions made by the borrowers and ordered that MERS may execute its writ with the assistance of the county Sheriff.| Permalink