March 13, 2013
U.S. 9th Circuit Court of Appeals Holds that Lenders Still Entitled to Repayment of Loans Even If MERS is Not a Beneficiary
In Cervantes v. Countrywide Home Loans, Inc., No. 09–17364 (U.S. 9th Cir. 2011), there was a putative class action challenging origination and foreclosure procedures for home loans maintained within the Mortgage Electronic Registration System (MERS). In their complaint, the plaintiffs allege conspiracies by their lenders and others to use MERS to commit fraud. They also contend that all transfers of the interests in the home loans within the MERS system are invalid because the designation of MERS as a beneficiary is a sham and the system splits the deed from the note, and, thus, no party is in a position to foreclose. The court reasoned found that MERS did not initiate foreclosure: the trustees initiated foreclosure in the name of the lenders. Even if MERS were a sham beneficiary, the lenders would still be entitled to repayment of the loans and would be the proper parties to initiate foreclosure after the plaintiffs defaulted on their loans. The plaintiffs’ allegations do not call into question whether the trustees were agents of the lenders. Although it is unclear from the pleadings who the current lender is on plaintiff Cervantes’s loan, the allegations do not raise any inference that the trustee Recontrust Company lacks the authority to act on behalf of the lender. Further, the notes and deeds are not irreparably split: the split only renders the mortgage unenforceable if MERS or the trustee, as nominal holders of the deeds, are not agents of the lenders.
March 13, 2013 | Permalink | No Comments
California Court of Appeals Holds that MERS and its Assignee have Standing to Foreclosure Without Holding Original Promissory Note
In Ferguson v Avelo Mortgage, LLC.,195 CA 4th 1618 (2011), the court held that MERS and its valid assignee, Avelo, had authority to initiate foreclosure proceedings and invoke the tender rule against Tenants, even when neither held the original promissory note. The owner had purchased home with New Century Mortgage Company as lender, Mortgage Electronic Registration Systems (MERS) as lender’s nominee and beneficiary under the deed of trust, and First American Title as trustee. Avelo Mortgage executed a substitution of trustee, replacing First American with Quality Loan Service Corporation. MERS then assigned its interest under the deed of trust to Avelo. The substitution of trustee (from First American to Quality) was recorded in 2007; on that same day, the notice of sale was recorded. Avelo purchased Home in a nonjudicial foreclosure sale in 2008. Court reasoned that the deed of trust specifically allowed MERS to initiate foreclosure proceedings. Under federal case law, it is not necessary that MERS or Avelo, as its assignee, have possession of the original promissory note as a precondition to a nonjudicial foreclosure under the deed of trust. The court characterized the argument that MERS or Avelo must have possession of the promissory note as a “legal loophole.”
March 13, 2013 | Permalink | No Comments
March 12, 2013
Alabama Circuit Court Holds that MERS has Standing to Foreclose if it is a Nominee of the Lender
In Henderson v. Merscorp Inc., No. 08-CV-900805 (Ala. Cir.Ct. May 6, 2010), the Alabama Circuit Court dismissed an action claiming that MERS lacked standing to foreclose. The borrower sued MERS after MERS initiated foreclosure proceedings after a default, and alleged that MERS lacked standing to foreclose. The borrower made claims for wrongful foreclosure, negligence, wantonness, and unjust enrichment. MERS moved for summary judgment, arguing that it had standing to foreclose because MERS is the mortgagee as nominee for the Lender and MERS holds the legal title to the note and mortgage. MERS’ attorney held physical possession of the note for MERS, and the note endorsed in blank. MERS also moved to dismiss plaintiff’s claims for negligence, wantonness, and unjust enrichment because MERS was not the servicer of the loan and was not responsible for collection, distribution, or application of plaintiff’s mortgage payments. Additionally, MERS argued that plaintiff’s wrongful foreclosure claim should be dismissed because no foreclosure sale had occurred or was scheduled, even though plaintiff had defaulted. The trial court granted MERS’ motion for summary judgment and dismissed the case. On plaintiff’s appeal, the Alabama Supreme Court affirmed the trial court without opinion. The Circuit Court also affirmed without opinion.
March 12, 2013 | Permalink | No Comments
Ohio Bankruptcy Court Holds that Incomprehensible Payment Histories Evidence Defective Procedures
In In re Cartier, No. 04-15754 (Bankr. N.D. Oh. June 18, 2008),the Bankruptcy court found that the payment history was incomprehensible and that procedures were not followed. There was an order on MERS, through an officer, to appear and show cause, and the show cause related to a defective motion for relief from stay that was filed. The investigation revealed that MERS regulations and procedures had not been followed, and as a consequence, the dots could not be connected to make MERS the noteholder in these cases. In this case it was clear that MERS was not the noteholder.
March 12, 2013 | Permalink | No Comments
Florida Circuit Court Holds that MERS has No Standing if it Never Held the Mortgage Note
In MERS, Inc. v. Cabrera, (11th Cir. Sept. 16, 2005), the court held that MERS’s allegations that it “owned”, “held” and “possessed” the mortgage notes are clearly, palpably and inherently false because it never held the Note in its physical possession. The plaintiff Cabrera alleged that it owned and held the Note and Mortgage. MERS joined itself as a nominee for Fermont Investment and Loan, the lender. MERS conceded that it had no “beneficial interest” in the Mortgage Notes. The court reasoned that because MERS never held the note and had no “beneficial interest” it did not have standing in the case.
March 12, 2013 | Permalink | No Comments
Ohio Court of Appeals Holds that Execution of Mortgage Assignment is Sufficient to be a Real Party in Interest
In BAC Home Loans Servicing, L.P. v. Hall, 2010-Ohio-3472 (Ohio Ct. App. 2010), the Ohio Court of Appeals reviewed the sole question of whether the bank in this case had standing to foreclose. The homeowners argued that the bank “was not the real party in interest and therefore lacked standing to initiate the foreclosure action because the mortgage assignment was not recorded until. . . four days after the [foreclosure] complaint was filed.” The court rejected this argument based on the fact that although the assignment was not recorded until after the complaint was filed, it was executed prior to filling. The court then held that the execution of the mortgage assignment was sufficient to characterize the bank as “the current holder of the note and mortgage at the time the complaint was filed” and thus “was the real party in interest and therefore had standing to bring the foreclosure action.”
March 12, 2013 | Permalink | No Comments
Untrustworthy?
By David Reiss
John Campbell has posted an abstract (and hopefully soon a draft) of Putting the ‘Trust’ in Trustees: An Examination of the Foreclosure Crisis and Suggestions for Reforming the Role of the Trustee. The draft itself proposes legislation for non-judiical foreclosure jurisdictions “that would make trustees real gatekeepers who require essential proofs, ask basic questions, and when factual disputes arise between the foreclosing party and the homeowner, refer those questions to courts.” (53) It is valuable to set forth some of the things that Campbell’s proposal would require from trustees:
Each of these items reflects a major controversy in the world of foreclosures. The first would ensconce the “Show Me the Note!” claim made by homeowners during foreclosure and bankruptcy proceedings in the statutory framework of non-judicial foreclosure regimes. The second would be a frontal assault on the role of MERS, requiring that the foreclosing party record in its own name its interest in the deed of trust. And the third would require that servicers provide adequate evidence to homeowners of the default. The proposal would effectively make non-judicial foreclosure a lot more like judicial foreclosure, an objective that I will not weigh in on today.
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March 12, 2013 | Permalink | No Comments