Editor: David Reiss
Brooklyn Law School

March 23, 2013

District Court of Arizona Finds MERS has Authority to Transfer a Lender’s Interest Under a Deed of Trust, Denies Plaintiffs’ Request for a Temporary Restraining Order

By Joseph Kelly

In Jones v. Wells Fargo Bank, CV11-0197-PHX-DGC, 2011 WL 683887 (D. Ariz. Feb. 18, 2011) reconsideration denied, CV11-0197-PHX-DGC, 2011 WL 767302 (D. Ariz. Mar. 1, 2011) the District Court of Arizona denied plaintiff/homeowners’ petition for a temporary restraining order, finding plaintiffs had failed to prove a likelihood of success on the merits of their case.

The Jones’ made five arguments in support of their petition for a temporary restraining order, the court addressed all five.


First, they alleged that the foreclosure documents created by Defendant Wells Fargo Bank did not include valid signatures. However their only evidence of this claim was complaints they had filed with the state’s Attorney General’s Office. The court found this was insufficient to show a likelihood of success on the merits.


Second, they argued that Wells Fargo was not a valid successor on the Deed of Trust or Promissory Note because MERS could not confer that status to Wells Fargo. The court disagreed, citing Blau v. America’s Servicing Co., 2009 WL 3174823 at *7 (D.Ariz., Sept. 29, 2009) for the proposition that “MERS is authorized to transfer a lender’s interest under a Deed of Trust and related documents.”


Third, plaintiffs argued Wells Fargo had already been paid in full on their Promissory Note. However, their only evidence of this claim was a stamp attached to a Deed of Trust that stated “pay to the order of Wells Fargo, NA, without recourse.” They did not explain how or by whom the note could have been paid in full. The court found this simply showed Wells Fargo’s right to receive payments.


Fourth, plaintiffs claimed that a complaint filed by the Arizona Attorney General against Bank of America in regards to mortgage fraud supported their TRO. Again, the court disagreed, finding claims against Bank of America irrelevant to plaintiffs’ claims against Wells Fargo.


Finally, plaintiffs claimed they did not understand when they signed the Deed of Trust that MERS could transfer their rights. However, the court pointed to the specific language in the Deed that stated MERS was a beneficiary to deny this claim as well. Further, since plaintiffs did not argue they were unaware that beneficiaries of a Deed of Trust could foreclose if payments were not made, the court concluded plaintiffs had failed to show a likelihood of success on the merits, and denied their request for a TRO.

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