Tag Archives: MERS

Pennsylvania Appellate Court Affirms MERS’ Standing to Foreclose

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The Pennsylvania appellate court in MERS v. Estate of Harriet L. Watson, et al., Superior Court of Pennsylvania # 637 WDA (2006), affirmed the standing of MERS to foreclose.

The case involved counter-claims as well as affirmative defenses filed by the estate of a deceased borrower in response to a foreclosure suit brought by MERS in 2003. The estate’s defenses and counter-claims included the theory that MERS, in someway, lacked standing because it was not the “real party-in-interest.” Moreover, MERS could not bring a foreclosure suit in Pennsylvania since it did not register as a foreign corporation doing business in Pennsylvania.

After consideration of the estate’s claims, the appellate court disregarded the estate’s challenges to MERS standing to foreclose due to the clear language of the mortgage itself. The court then held that MERS was not required to register as a foreign corporation because the act of acquiring, recording, or enforcing a mortgage lien constituted a specific exception under 15 Pa.C.S.A. § 4122 to the general requirement that companies “doing business” in Pennsylvania must obtain a certificate of authority in order to file suit in Pennsylvania. Such actions, by statutory definition, do not constitute “doing business.”

Illinois Federal Appellate Court Rules That MERS Had Sufficient Authority to Commence Foreclosure Proceeding in its Capacity as an Agent

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The federal appellate court in MERS v. Estrella, 390 F.3d 522 [7th Cir. 2004] ruled that MERS had a sufficient authority to commence a foreclosure proceeding, in its capacity as an agent on behalf of its principal.

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At issue in this case was an application to confirm a sale. On appeal, the court dismissed the appeal based upon well-established law that Court orders denying confirmation to judicial sales are not final decisions, and thus are not appealable.

Additionally, implicit in the court’s holding was recognition that MERS has standing to commence a foreclosure proceeding as agent on behalf of its principal. Indeed, the Estrella Court did not dismiss the proceeding in its entirety for lack of standing by the agent, rather cited to Indiana Gas Co. v. Home Insurance Co., 141 F.3d 314, 319 [7th Cir. 1998] which recognized the capacity of an agent to commence a proceeding “[w]hen the principal’s interests are affected by the litigation, the principal’s citizenship counts even if the agent is the sole litigant.”

The federal appellate court did not issue a blanket ban to suits commenced by MERS as an agent on behalf of its principals. Instead, in suits brought by agents, it directs federal district courts to ascertain the citizenship of the principal of the plaintiff to determine whether federal diversity jurisdiction exists.

Georgia Court Authoritatively Recognizes MERS’ Right to Foreclose

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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.

Arkansas Court Holds That MERS Had Standing to Seek Relief for its Writ of Assistance

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The court in Mortgage Electronic Registration Systems, Inc. v. Stephanie Gabler, et al., (Circuit Court of Garland County # 2004-17-II) held that “MERS has standing to seek relief for its Writ of Assistance and is the proper party to foreclose the mortgage as MERS is the mortgagee of record and holder of the promissory note.”

The borrowers claimed that MERS did not own the note, thus they did not have standing. However, the court reasoned that ownership of the note was not required to have standing.

The court held that MERS had standing. MERS subsequently obtained a foreclosure judgment, held the foreclosure sale, and obtained a post-judgment order for writ of assistance to remove the occupants, including the named defendant [Gabler.] Shortly after the writ was obtained in June 2004, the pro se borrowers sought removal to federal court, and the Western District of Arkansas rejected jurisdiction. A subsequent emergency appeal to the 8th Circuit Court of Appeals was also denied. The borrowers then filed for bankruptcy, but voluntarily dismissed the bankruptcy action four months later.

The borrowers then went back to state court in the eviction action and filed an objection to the writ of assistance, a request for injunction, and a counterclaim. The borrowers claimed in their objection that they were not properly served in the foreclosure proceedings and that MERS does not have standing because it is not the owner of the note.

The court rejected all of the contentions made by the borrowers and ordered that MERS may execute its writ with the assistance of the county Sheriff.

Florida Court Dismisses Class Action to Declare MERS in Violation of Florida Consumer Protection Laws

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The debtors in Trent v. MERS, 288 Fed. App’x 571 (11th Cir. 2008) argued that Mortgage Systems sent them deceptive notices that were in violation of section 559.72(9) of the Collection Act. The debtors further argued that the notice misidentified Mortgage Systems as their “creditor.” Lastly, the debtors alleged that the lower court should have applied the “least-sophisticated-debtor” standard to determine whether these notices were misleading.

The debtors also argued that MERS violated the Collection Act when it filed foreclosure actions against them, but the court rejected this argument. The court reasoned that even if MERS engaged in “debt collection activities” under the Collection Act, MERS did not violate section 559.72(9), because MERS had the authority to file foreclosure actions.

Ultimately the court decided that the debtors’ arguments failed. The court found that under the mortgage contracts, MERS had the legal right to foreclose on the debtors’ property. Mortgage Systems was the mortgagee, the notices sent to the debtors restated information from the mortgage contracts and were not likely to mislead even the least sophisticated debtor.

Court Rules MERS is Not Required to Register With the Secretary of State Because Enforcing Deeds of Trust Does Not Qualify as “Doing Business” in California

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The court in Sulak v. Mortgage Electronic Registration Systems, Inc., et al., DCA No. E039775, (2004) found that the lower court properly denied the preliminary injunction and that the orders denying the TRO were proper.

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In this case, the plaintiffs-borrowers stopped making payments on their loan and initiated a suit for damages and injunctive relief against MERS. The plaintiff claimed that stoppage of payment was proper as they alleged that MERS could not enforce or collect the note and deed of trust [1] without holding a Certificate from the Secretary of State, [2] without responding to multiple requests for validation of the debt under the Fair Debt Collection Practices Act (FDCPA), and [3] without having endorsements on the note or recorded assignments to successors in interest to the original lender.

The court rejected the plaintiff’s contentions and went further to characterized the plaintiff’s approach as “[e]ssentially, plaintiffs called ‘Olly-olly oxen free’ on the note and deed of trust, and stopped making payments.”

Arizona Court Holds That MERS is the Beneficiary With the Authority to Foreclose

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The court in Ciardi v. The Lending Company, Inc. et al., 2010 WL 2079735 (D. Ariz. 2010) held that that MERS is the beneficiary with the authority to foreclose. In doing so the court granted the defendant’s motion to dismiss and motion to vacate temporary restraining order.

In December 2005, plaintiff [Bianca Ciardi] borrowed $270,500 from ‘The Lending Company’ for the purpose of purchasing real property. Plaintiff also executed a promissory note and a deed of trust. Soon after, the plaintiff’s note was sold.

Plaintiff eventually defaulted on their note and their home was nearing auction in a non-judicial trustee’s sale. A lower court granted the plaintiff’s temporary restraining order (“TRO”) without notice. Defendants removed to this court, and sought to have the TRO dissolved and Plaintiffs’ first amended complaint dismissed pursuant to FRCP 12(b)(6).

In their analysis, the court noted, that the Plaintiff’s amended complaint was not the model of clarity and that the plaintiff did not allege any specific causes of action, rather much of their amended complaint was simply a narrative concerning the mortgage securitization industry.

In reaching their conclusion, the court, reviewed the plaintiff’s amended complaint. And concluded that even considering the plaintiff’s pro se status and, in so doing, construing plaintiff’s amended complaint liberally, the court found that the plaintiff failed to state a claim upon which relief may be based. Plaintiff also sought a preliminary injunction to halt the planned foreclosure of their home. However, the court reasoned, in order to obtain preliminary injunctive relief, the moving party must show a likelihood of success on the merits.

Accordingly, because the court found the plaintiff’s amended complaint failed for a failure to state a claim, the court found that the plaintiff failed in showing a likelihood of success on the merits. As such, the Court denied the plaintiff’s request for a preliminary injunction.