How current events impact business & real estate

Monday, June 13, 2011

Foreclosures - MERS hit with Fatal Blow

In a well anticipated decision the Appellate Division, Second Department (regulates all of Long Island) has saved many many homes as of June 7, 2011, a date that will be remembered in the real estate world for years to come.

The Court clearly stated as follows:

"The issue presented on this appeal is whether a party has standing to commence a foreclosure action when that party's assignor - in this case, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS)-was listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes."

"We answer this question in the negative."

To read the entire decision, click here.

If one was to look back on the decision in In Re Agard where the Federal Bankruptcy Court held that splitting the note and mortgage was fatal or back to MERS v. Romaine where the dissent questioned the entire mortgage recording system invented by MERS, this decision was a long time coming.

The fact is this - Don't usurp the role of government and than ask government to help a misstep in your practices. MERS needs to play by the same rules as everyone else.

Interestingly, the Court notated that "MERS purportedly holds approximately 60 million mortgage loans" & makes this decision in the face of that.

If you are being foreclosed or know someone who is, you now have a lot more rights to potential keep your home for a long time. This will force many modifications!!!

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