Editor: David Reiss
Brooklyn Law School

October 15, 2013

Missouri Court of Appeals Holds that MERS Does not have Authority to Assign without Holding Note

By Gloria Liu

In Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 621 (MO Ct. of App., E. D., Mar. 3, 2009), the court held that MERS did not have the authority to assign its interest because it did not hold the promissory note. BNC Mortgage Inc. (BNC) was the lender and payee of the promissory note. In the deed of trust, Millsap, Singer & Dunn, P.C. was the trustee. The deed of trust, however, did not name BNC as the beneficiary, but instead names MERS, solely as BNC’s nominee. The promissory note does not make any reference to MERS. The note and the deed of trust both require payments to be made to the lender, not MERS. MERS, as nominee for BNC, later assigned the deed of trust to Ocwen. The assignment of the deed of trust also contained language that this assignment also transferred any and all notes described in the deed of trust.

The court reasoned that because the note becomes unsecured in the event that the note and the deed of trust are split, there was no evidence in the record or the pleadings that MERS held the promissory note or that BNC gave MERS the authority to transfer the promissory note. Therefore, MERS could not transfer the promissory note and the language in the assignment of the deed of trust purporting to transfer the promissory note is ineffective. MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force. As Ocwen holds neither the promissory note, nor the deed of trust, Ocwen lacks a legally cognizable interest and lacks standing to seek relief from the trial court.

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