Editor: David Reiss
Brooklyn Law School

August 25, 2013

Georgia Court Authoritatively Recognizes MERS’ Right to Foreclose

By Ebube Okoli

The court in American Equity Mortgage, Inc. and Mortgage Electronic Registration Systems, Inc. v. Chattahoochee National Bank, # 05-cv-1951 (Forsyth Cty. Sup. Ct., Dec. 29. 2005) authoritatively recognized the right of MERS to foreclose. This case involved an action to enjoin an immediate judicial sale due to equitable subrogation in which the court recognized the validity of a lien held by MERS and MERS’ ability to enforce it.

After considering arguments and an evidentiary hearing, the court concluded that “MERS, in its capacity as grantee in the deed to secure debt and as nominee for American, or its successor in interest as the holder of the note, is the entity that would suffer irreparable harm if [Chatahoochee] foreclosed on its judgment lien and is the entity entitled to seek an injunction in this case. MERS is entitled to enforce the American Deed to Secure Debt per its terms.”

The court awarded MERS a permanent injunction precluding Chatahoochee or its successors or assigns from selling or foreclosing on the property as long as the deed held by MERS remained in effect.

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