Editor: David Reiss
Brooklyn Law School

February 12, 2013

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

By Rafe Serouya

In Tapia v. U.S Bank, N.A., 718 F. Supp. 2d 689 (E.D. Va. 2010) aff’d, 441 F. App’x 166 (4th Cir. 2011), the Court granted all of Defendants’ motions to dismiss. The Judge held that declaratory judgment that the foreclosure proceeding was deficient was inappropriate given that the foreclosure had already taken place. MERS was held to have standing to foreclose since the Deed of Trust authorized MERS to foreclose the Property in the event that Plaintiff Homeowners defaulted on the loan. “By signing the Deed of Trust, Plaintiffs agreed that MERS, as nominee for Lender and Lender’s successors and assigns, had the right to foreclose the Property and recognized that MERS could take any action required of Lender.” The court rejected Plaintiffs’ argument that standing is required before a foreclosure proceeding is initiated since standing is not required in Virginia, which is a non-judicial foreclosure state. The Court dismissed various other claims by Plaintiffs due to lack of factual or legal bases to support those claims.

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