Housing Wire‘s website had an interesting little article about some decisions that are coming out of California regarding MERS and its ability to foreclose on properties without having property assignment of the deeds of trust.
I speak with a lot of individuals who approach foreclosure from the standpoint that if the foreclosing entity does not have both the note and deed of trust assigned to them, they therefore cannot foreclose. MERS (Mortgage Electronic Registration System) presented a problem because it dealt with many of these types of arrangements. We are now starting to see that the court is not buying that argument, and that at a minimum, MERS may act as an agent on behalf of banks to execute their rights under deeds of trust.
I’m sure there will be more battles forthcoming regarding this issue, but California seems to be laying out at least an initial trend.
The most telling quote from the short article is the following:
“MERS’ legal standing as mortgagee, or agent of the note holder, gives MERS the authority under California law to take action on behalf of the owner of the note,” said Janis Smith, MERS vice president of corporate communications.
(Granted, it’s from MERS, so take that into consideration.)