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MERS Winning War

While the Mortgage Electronic Registration Systems Inc. has faced some setbacks recently, dozens of decisions have been issued in favor of the registry by judges in several states.

In Alabama, Erica Sumpter Congress defaulted in February 2007 on her loan with Mortgage Lenders Network USA Inc. MERS was the nominee on the loan. GMAC, which had since become the servicer, started the foreclosure process in June 2008. A month later, an assignment was executed transferring the ownership of the mortgage from MERS to U.S. Bank.

A foreclosure sale took place in August 2008, but when Congress failed to leave the property, U.S. Bank filed an ejectment action in March 2009 and obtained a judgment in February 2011. Congress appealed, and the Court of Civil Appeals of Alabama reversed the decision and remanded the case.

MERS was the nominee for a mortgage made in August 2005 by Fremont Investment & Loan to Philip Baldeo Rambaran and Hemant K. Rambaran. But the Fremont note was never recorded. In March 2007, Hermant Rambaran conveyed his interest in the property to his daughters who immediately took out a loan with Delta Funding Corp. that was subsequently assigned to HSBC Bank USA, N.A., as indenture trustee for a mortgage-backed security.

 

MERS sued in September 2009 claiming that its position was superior to Delta’s. A motion for summary judgment by HSBC was denied. HSBC appealed the decision with the Appellate Division of the Supreme Court of New York, but the decision was affirmed.

Chicago Title Insurance Co. challenged an Ohio federal judge’s decision to grant summary judgment to Fifth Third Mortgage on claims that the title insurer was required to defend and indemnify Fifth Third in a dispute over property in Ohio. Fifth Third was duped by a fraudulent title agent, Jolie Neal of Direct TItle — the owner of the property at issue who obtained multiple fraudulent loans on the property. But the U.S. Court of Appeals, Sixth Circuit, affirmed the district court’s decision.

“The party that should have been more careful here was Chicago Title itself,” the decision stated. “Chicago Title, not Fifth Third, chose to enter into an agency agreement with a fraudulent agent. That agreement was the sine qua non of everyone’s losses here. And Chicago Title, not Fifth Third, failed to catch the publicly recorded encumbrances on the Plantation property before issuing the policy here. The consequences that followed are simply those spelled out in the policy itself.”

An unreleased opinion from the Supreme Court of Oklahoma that is still subject to change involved a February 2005 mortgage from Ameriquest Mortgage Company Inc. with MERS as nominee. The borrowers demanded strict proof of ownership of their note in their answer, but the trial court granted summary in March 2011 judgment to U.S. Bank, N.A. The borrowers’ motion to vacate judgment was denied, but the state’s supreme court reversed the decision on June 12.

Pavel Petrashishin alleged that ReconTrust Co., as the successor trustee to MERS, lacked authority to conduct a non-judicial foreclosure sale because MERS didn’t record the assignments. The loan, originated by America’s Wholesale Lender, is serviced by BAC Home Loans. A motion to dismiss the case by BAC was denied on April 13 by the U.S. District Court for the District of Oregon.

MERS, as nominee for Encore Credit Corp. d/b/a ECC Credit Corporation of Texas, appealed a default judgment in favor of Khyber Holdings LLC. MERS argued that error is apparent on the face of the record. The Court of Appeals of Texas, First District, reversed the trial court judgment and remanded the case.

MERS reported a host of cases where its title transfer system was affirmed by various courts, as reflected in the following table.

Case Title Court Case No. Action Date of Action
Kristin Bain, Plaintiff, v. Metropolitan Mortgage Group Inc.; IndyMac Bank, FSB; Mortgage Electornics Registration Systems; Regional Trustee Service; Fidelity National Title; and Doe Defendants 1 through 20, inclusive, Defendants.

Kevin Selkowitz, in individual, Plaintiff, v. Litton Loan Servicing, LP, a Delaware limited partnership; New Century Mortgage Corp., a California corporation; Quality Loan Service Corporation of Washington, a Washington corporation; First American Title Insurance Company, a Washington Corporation; Mortgage Electronic Registration Systems Inc., a Delaware corporation; and Doe Defendants 1 through 20, Defendants.

Supreme Court of the State of Washington No. 86206-1 consolidated with No. 86207-9 Court found if MERS not promissory note-holder, then is not considered to be the beneficiary for purposes of non-judicial foreclosures in Washington. Aug. 16
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS SUCCESSOR IN TO JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE FIRST NLC TRUST 2005-2 MORTGAGE BACK CERTIFICATES, SERIES 2005-2 v. ROSA CUEVAS

 

ROSA MARIA CUEVAS, and all other occupants v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; FIRST FINANCIAL SERVICES LLC; THE BANK OF NEW YORK

State of Rhode Island and Providence Plantations PD 2010-0988, PC 2010-0553 (consolidated) Court held that “it is clear beyond a reasonable doubt that the original lender’s designation of MERS as mortgagee in the mortgage instrument was binding on plaintiff, as plaintiff acknowledged and agreed by his signature thereon [the mortgage] to the terms contained herein.” April 18
BARRETT BATES, STATE OF CALIFORNIA ex rel. Barrett R. Bates, qui tam plaintiff, on behalf of real parties in interest, Alameda County, et al., Plaintiff-Appellant, v. Mortgage Electronic Registration System, Inc.; BANK OF AMERICA, NA; BANK OF AMERICA, NA, FKA Countrywide Home Loans, Inc.; CITIMORTGAGE, INC.; GMAC MORTGAGE LLC; JPMORGAN CHASE BANK; WELLS FARGO BANK, NA, Defendants-Appellees. U.S. Court of Appeals for the Ninth Circuit No. 11-15894 v. D.C. No. 2:10-cv-01429-GEB-CMK Lower court ruling affirmed. Sept. 17
Bart G. Brandrup v. ReconTrust Company, N. A. Supreme Court State of Oregon S060281 Court accepted certified questions. July 19
Mariusz Buchna; Julita Buchna, Plaintiffs-Appellants, v. Bank of America, NA; Bank of New York Mellon Corporation; Mortgage Electronic Registration Systems Incorporated, Defendants-Appellees. U.S. Court of Appeals for the Ninth Circuit 10-17651 Dismissal of a plaintiffs’ complaint dismissed. July 11
William B. Butler; Mary S. Butler, individually and as representatives for all others similarly situated as Plaintiffs – Appellants v. Bank of America, N.A.; BAC Home Loans Servicing, L.P.; Peterson, Fram & Bergman, P.A. Defendants – Appellees. U.S. Court of Appeals For the Eighth Circuits 11-2653 Aug. 27
Cafua v. MERS State of Rhode Island and Providence Plantations Superior Court na Judge rejects plaintiffs standing. June 20
ALEXANDER CHERIAN, Plaintiff, v. COUNTRYWIDE HOME LOANS, INC., NATIONAL TITLE INSURANCE a New York corporation, dba AMERICA’S WHOLESALE LENDER; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation; FIDELITY NATIONAL TITLE INSURANCE CO., a California corporation; CITIMORTGAGE, INC., a New York corporation; BAC HOME LOAN SERVICING LP, a Texas limited partnership; US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE CMLTI 2006-AR5 TRUST FUND, MORTGAGE PASSTHROUGH CERTIFICATES SERIES 2006-AR5; RECONTRUST COMPANY, N.A.; NORTHWEST TITLE, LLC DBA NTL LLC a Washington corporation; FIRST AMERICAN TITLE COMPANY, INC., an Idaho Corporation, Bank of America N.A., a Delaware Corporation, and JOHN DOES 1 THROUGH 10, Defendants. U.S. District Court for the District of Idaho 1:12-CV-00110-BLW Case dismissed. July 11
Chhun v.MERS State of Rhode Island and Providence Plantations Superior Court na Judge rules in favor of MERS. June 26
RICHARD E. COOKE, JR., JOYCE J. COOKE v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; COUNTRYWIDE HOME LOANS, INC.; AND FEDERAL NATIONAL MORTGAGE ASSOCIATION State of Rhode Island and Providence Plantations Superior Court PC 2011-3487 Judgment for defendant. Aug. 29
Dehdashti v. The Bank of New York Mellon U.S. District Court na Judge rules plaintiff lacked “standing to challenge the validity of the assignment because she was not a party to the assignment.” June 29
DEUTSCHE BANK, ET AL v. JANICE FALCONER, JOANN FALCONER, AND TRACEY BIAZ

 

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF SEPTEMBER 1, 2006, GSAMP TRUST 2006-FM2 v. JANICE FALCONER, AND ALL OTHER OCCUPANTS

JANICE A. FALCONER AND MARIA FALCONER v. MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.; FREMONT INVESTMENT & LOAN; AND DEUTSCHE BANK NATIONAL TRUST COMPANY OF NEW YORK

State of Rhode Island and Providence Plantations Superior Court C.A. No. PD 2010-1588 (Consolidated)

 

C.A. No. PD 2010-1591

C.A. No. PC 2010-1996

Judge ruled that “MERS, while not the lender or note-holder, may nonetheless invoke the statutory power of sale as the mortgagee and nominee for the lender.” May 1, 2012
Federal National Mortgage Association, Plaintiff, vs. Reyes and Rosa Lopez, Defendants.

 

Reyes and Rosa Lopez, Third-Party Plaintiffs, vs. Federal National Mortgage Association, Trinity Home Mortgage Inc., Flagstar Bank FSB, Guaranty Title Inc., Mortgage Electronic Registration Systems Inc., Northwest Trustee Services Inc., and Everhome Mortgage Company, Defendant.

District Court of the Fourth Judicial District of the State of Idaho CV-2010-1404 Ruling in favor of MERS and Fannie while third-party complaint dismissed. Sept. 7
Anthony L. Haubrich, Lecia R. Connors f/k/a Lecia R. MacLeod, Ryan P. Connors, Gaoxee M. Yang, and Daua Yang, Plaintiffs, v. U.S. Bank National Association, Mortgage Electronic Registration Systems, Inc., MERSCORP, Inc., and Federal Home Loan Mortgage Corporation, Defendants. U.S. District Court for the District of Minnesota 0:12-cv-00565-DSD-TNL Judgment for defendant. Aug. 21
WENCESLAO FUERTE HERNANDEZ, Plaintiff v. BAC HOME LOAN SERVICING, LP, et al. Defendants U.S. District Court for the District of Oregon 3:12-cv-00106-MO Judge dismissed all counts of complaint with prejudice, the majority of which were based upon plaintiff’s theory that MERS is an invalid beneficiary. May 23
Aaron Paul Horton and Suzanne M. Horton, Plainfiffs, v. Aurora Bank FSB, et al., Defendants U.S. District Court for the Western District of Michigan 1:12-CV-365 Judgment for defendant. Aug. 13
Ingram v. MERS State of Rhode Island and Providence Plantations Superior Court na Judge determines that MERS expressly granted the right to exercise any or all interests, including right to foreclose and sell property. May 17
Jose Jimenez, an individual, Plaintiff, v. Federal National Mortgage Association (Fannie Mae): Northwest Trustee Services Inc.; and the Mortgage Electronic Registration Systems Inc., Defendants. Superior Court of the State of Washington in and for the County of King 11-2-38345-8KNT Borrower’s wrongful foreclosure and Washington Consumer Protection Act violation complaint dismissed. Aug. 30
Kosiba v. MERS State of Rhode Island and Providence Plantations Superior Court na Judge affirms MERS. June 25
John Marrocco, Plaintiff, v. Chase Bank, N.A. c/o Chase Home Finance LLC, Wells Fargo Bank, N.A., Mortgage Electronic Registration Systems Inc., and Greenpoint Mortgage Funding Inc., Defendants. U.S. District Court for the Eastern District of Michigan 12-10605 Borrower complaint dismissed based on flawed and frequently rejected theory that transfers of a promissory note splits note from mortgage, nullifying mortgage. July 26
Pedro Diaz Moreno, an individual, Plaintiff, v. Bank of America, N.A., Mortgage Electronic Systems Inc., as Nominee for Bank of America, and ReconTrust Company, N.A. Defendants. U.S. District Court for the District of Oregon 3:11-cv-01265-HZ Borrower’s wrongful foreclosure lawsuit dismissed and conclusions reached in previous cases in which judge ruled that MERS is valid trust deed beneficiary according to Oregon law were reaffirmed. April 27
Waseem Mustafa; Lorin Mustafa; Radjindre K. Bhoelai; Roger R. Cottrell; Jennifer A. Cottrell; Shafiqua Janetkhan; Hayat Janetkhan; Blia Tou Lee; May Lee; Trang Le; Minh Quang Tran; Charles J. Cordes; W. Scott Long, III; Susan M. Long; Chia Pao Xiong; Ying Xiong; Brad Everett; Lily Everett; Stacey R. Becklund, individually and as personal representative of the estate of Robert C. Anderson; Chad W. Everett; Robert J. Schumacher; Tim Gallagher; and Shannon E. Gallagher, Plaintiffs, v. Bank of America, N.A.; BAC Home Loans Servicing, LP; Mortgage Electronic Registration Services, Inc.; MERSCORP, Inc.; The Bank of New York Mellon; The Bank of New York Mellon Trust Company; Federal National Mortgage Association; and Federal Home Loan Mortgage Corporation, Defendants. U.S. District Court for the District of Minnesota 12-500 (DWF/TNL) Judgment for defendant. Aug. 21
NAPOLI et al v. HSBC MORTGAGE SERVICES, INC et al U.S. District Court for the District of New Jersey 1:12-cv-00222 Judge rules NJ law required plaintiffs to have brought claims within foreclosure case itself. Aug. 24
Sandra L. Novak, Paul R. Olson, Damaris M. Olson, Lisa E. Belflower, Benjamin P. Carter, Daryl K. Hoffbeck, Christopher J. Hardy, Wendy K. Richter and Joan K. Hoffbeck, Plaintiffs, v. JP Morgan Chase Bank, N.A., Chase Home Finance, LLC, Mortgage Electronic Registration Systems, Inc., Merscorp, Inc. and Federal National Mortgage Association, Defendants. U.S. District Court for the District of Minnesota 12-589 (DSB/LIB) Judgment for defendant. Aug. 23
O’Brien v. MERS State of Rhode Island and Providence Plantations Superior Court na Judge found mortgage expressly permitted assignment of interest by MERS and authority was specifically approved by the mortgagor giving MERS authority to assign interest. June 4
Dennis J. Olesuk II, et al., Plaintiffs, v. Federal National Mortgage Association, et al., Defendants U.S. District Court for the Eastern District of Michigan 2:12-cv-11001-SJM-PJK Judgment for defendant. June 27
Lester Pascual, an individual, and Ofelia Pascual, an individual, Plaintiffs, vs. Aurora Loan Services, LLC and DOES 1-100 inclusive, Defendants. U.S. District Court for the District of Hawaii Civil No. 10-00759 JMS-KSC Judge dismissed plaintiffs’ first amended complaint asserting that Aurora violated Hawaii’s non-judicial foreclosure statute by foreclosing without a valid assignment of mortgage. June 18
State of Nevada, ex rel. Barrett R. Bates et al., Plaintiff-Appellant, v. Mortgage Electronic Registration System, Inc. et al., Defendants-Appellees. U.S. Court of Appeals for the Ninth Circuit D.C. No. 3:10-CV-00407-VPC Dismissal of suit filed under the Nevada False Claims Act. Sept. 17
RESIDENTIAL FUNDING CO, L.L.C., f/k/a RESIDENTIAL FUNDING CORPORATION, Plaintiff-Appellant, v Defendant-Appellee.

 

BANK OF NEW YORK TRUST COMPANY, Plaintiff-Appellant, COREY MESSNER, Defendant-Appellee.

Michigan Supreme Court SC: 143178, COA: 290248, Kent CC: 08-011138-AV

 

SC: 143179 COA: 291443, Jackson CC: 08-003406-AV

Court ruled that borrower’s argument regarding the separation of the note and mortgage failed. May 31
Antonio P. Rosano v. MERS, Equifirst Corp.; Sutton Funding LLC C/O HomeEQ Servicing State of Rhode Island and Providence Plantations Superior Court C.A. No. PC 2010-0310 MERS right to assign interests in mortgages upheld. June 19
Florida Ruiz, Plaintiff, vs. SunTrust Mortgage Inc., et al., Defendants U.S. District Court for the Eastern District of California CV F 12-0878 LJO BAM Judgment for defendant. July 24
Scarcello v. MERS State of Rhode Island and Providence Plantations Superior Court na Judge rejects plaintiff’s standing. June 26
ANDREA SKOV, Plaintiff and Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Defendant and Respondent. Court of Appeal of the State of California H036483 (Santa Clara County Super. Ct. No. CV153635) Court rejected contention that MERS lacked authority to execute notice of default and assignment of deed of trust. July 3
MARLON TAASAN et al., Plaintiffs and Appellants, v. FAMILY LENDING SERVICES, INC. et al., Defendants and Respondents First Appellate District, Division Two A132339 (Solano County Super. Ct. No. FCS 035585) Affirmed March 2011 lower court finding that borrowers “executed a deed of trust conferring on MERS or any successor in interest the right to exercise the power of sale as the named nominee beneficiary.” July 10
LARI KEI TADEHARA; JULIA KAY TADEHARA, Plaintiffs-Appellants, v. ACE SECURITIES CORP. HOME EQUITY LOAN TRUST SERIES 2007-HE4; OCWEN LOAN SERVICING; HSBC BANK USA, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants-Appellees, and DB STRUCTURED PRODUCTS; DB HOME LENDING, Defendants. U.S. Court of Appeals for the Tenth Circuit

 

U.S. District Court for the District of Utah

11-4176

 

D.C. No. 2:11-CV-00436-DS

Plaintiffs wrongful foreclosure complaint dismissed. July 5
Michael Thomas, Plaintiff, v. U.S. Bank, NA, Mortgage Electronic Systems Inc. U.S. District Court for the Northern District of Georgia 1:12-CV-01239-MHS Judgment for defendant. Aug. 14
U.S. BANK, N.A., Appellee, v. JAMES W. HOWIE, DECEASED, et al. (GEORGIA L. HOWIE), Appellants. Court of Appeals of the State of Kansas 106,415 Lower court ruling in favor of plaintiff sustained. June 13
DR. JANE GRAYSON WIGGINTON, Plaintiff – Appellant v. THE BANK OF NEW YORK MELLON, as Trustee for the Benefit of the Certificateholders Cwabs, Incorporated. Asset Backed Certificates, Series 2007-9; BAC HOME LOANS SERVICING, L.P.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INCORPORATED, Defendants – Appellees U.S. Court of Appeals for the Fifth Circuit No.12-10136ty Plaintiffs’ wrongful foreclosure complaint dismissed. Sept. 14
Wilkins v. First Magnus Financial Corporation Bonneville County District Court in Idaho na Plaintiffs’ complaint to “quiet title” alleging wrongful foreclosure against MERS and 3 other defendants by citing Idaho and federal case law was rejected. July 30
Bruce H. Yuille, Plaintiff-Appellant, v. American Home Mortgage Services Inc.; Mortgage Electronic Registration Systems Inc.; Deutsche Bank National Trust Company; GSR Mortgage Loan Trust 2006-OA1; Michael J. Bouchard, Oakland County Sheriff, Defendants-Appellees U.S. Court of Appeals for the Sixth Circuit 10-2564 District court ruling affirmed. May 29

 

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