Editor: David Reiss
Brooklyn Law School

February 12, 2013

Federal District Court in Virginia Rules for Lenders/MERS in Foreclosure Case

By Rafe Serouya

In Ramirez Alvarez v. Aurora Loan Services, 01:09CV1306, 2010 WL 2934473 (E.D. Va. July 21, 2010), Plaintiffs purchased the property at issue by executing two promissory notes and two deeds of trust. Defendant was the holder of the first promissory note of  $436,000. Plaintiffs became delinquent in their mortgage payments and after MERS appointed a substitute trustee foreclosure occurred soon after. Defendant, the purchaser of the foreclosed property instituted an Unlawful Detainer action to remove Plaintiffs from the property and Aurora was granted possession of the property.

Plaintiffs brought multiple claims in this case all of which failed as a matter of law. Two of the claims were “that (1) the defendants lacked authority to foreclose under Virginia’s non-judicial foreclosure statutes and (2) that the loan securitization process has split the Note from the Deed of trust making it unenforceable and/or credit default swaps related to the securitization of the notes have already satisfied the Plaintiff’s mortgage obligations.” These claims were dismissed for Plaintiffs’ failure to support their claims. Additionally, the Court held that MERS had the authority and ability to enforce the terms of the security instruments.

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