Editor: David Reiss
Brooklyn Law School

January 17, 2013

Plaintiff’s Claim Against MERS Time-Barred in Nevada

By Karl Dowden

In Haischer v. Mortgage Electronic Registration Systems, Inc., et al., No. 2-11-cv-01786-GMN-RJJ (D. Nev. Sep. 17, 2012), the plaintiff challenged a foreclosure after the property was sold at a foreclosure auction. The plaintiff requested an order to set aside the foreclosure sale and cancel the Trustee’s deed due to a violation of the Nevada Revised Statutes § 107 regarding deficiencies of the notice of default. Failure to comply with the notice provisions of § 107 warrant voiding a sale by the court. The defendants made a motion to dismiss the claim, which the court ultimately granted.

In this case, the plaintiff failed to bring the claim within the proper timeframe (within 90 days after the date of the sale or within 120 days of receiving actual notice of the sale). As a result, the court found that her claim was time-barred.

However, the court continued to address the plaintiff’s deficient notice claims.

The plaintiff first challenged the authority of ReconTrust, the organization that recorded the notice of default, arguing that they were neither a beneficiary or trustee at the time they recorded the notice. The court stated that in Nevada, “an assignment of the beneficial interest in a deed of trust need not be recorded in order to be valid.”

In response, the defendants submitted evidence that MERS was initially assigned the beneficiary interest in the deed of trust. MERS then assigned a beneficiary interest to BAC Home Loans Servicing, L.P. which was recorded in the proper county. BAC Home Servicing then named ReconTrust the Trustee. As a result, the court found that ReconTrust had the authority to record the notice of default.

The plaintiff then challenged the actual notice of default, alleging there were deficiencies in the notice that was required by the statute. However, the court found that the deficiencies the plaintiff alleged were either not required by the statute or were sufficiently addressed by the notice.

After addressing the plaintiff’s underlying claim, the court granted the defendant’s motion to dismiss.

| Permalink