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MERS to members: Don’t foreclose in our name

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Mortgage Electronic Registration Systems, or MERS, told its members Wednesday not to foreclose on residential mortgages in its name. The electronic registry of mortgage records built by Fannie Mae, Freddie Mac and the nation’s major lenders more than a decade ago has been under increasing fire by homeowners, prosecutors, politicians and others. The drumbeat against MERS became louder last fall as robo-signing — the signing of foreclosure affidavits of indebtedness en masse, without proper review — surfaced. The robo-signing scandal caused several large servicers to temporarily halt foreclosures as they reviewed their procedures, and prompted an investigation of lenders and their servicing shops by all 50 attorneys general. A proposed settlement could involve some of the nation's biggest servicers. "In recent months legal challenges have arisen regarding alleged inadequacies and improprieties in the foreclosure process including allegations of insufficient or incorrect supporting documentation and challenges to the legal capacity of parties’ right to foreclose," MERS said in its statement. "MERS is committed to reevaluate and strengthen its systems and procedures to protect against these types of legal challenges," MERS said in the statement posted on its website on Wednesday. MERS said in the statement that it was notifying members that it would be proposing an amendment requiring members “not to foreclose in MERS name.” Members will have 90 days to comment on the proposed rule. "During this period we request that members do not commence foreclosures in MERS' name. If a member determines that it will commence a foreclosure in MERS’ name during this 90-day period, two weeks advance notice must be given to MERS to permit verification of the appointment and current status of the certifying officer proposed to participate in the foreclosure. No foreclosure may be processed in MERS’ name without first obtaining this verification." MERS suggested that members bring foreclosures “only in the name of the holder of the note, in the name of the trustee or the servicer of record acting on behalf of the trustee.” In May of last year, Fannie Mae directed its servicers to cease naming MERS as a plaintiff in any of its foreclosure actions. In October, JPMorgan Chase & Co. (JPM) CEO Jamie Dimon informed investors that while the bank still participated in the registration system, it no longer foreclosed in the name of the registration system. MERS experienced a setback last week, when a N.Y. judge held that MERS could not legally transfer and assign mortgages through its electronic registry. Judge Robert Grossman ruled that the foreclosing lender had to show specific evidence that it was given specific written instructions by its principal. "By MERS account, it took no part in the assignment of the note in this case, but merely provided a database which allowed its members to electronically self-report transfers of the note," wrote Judge Grossman. "[T]here is nothing in the record to prove that the note in this case was transferred according to the process described above other than MERS’s representation that its computer database reflects that the note was transferred to U.S. Bank." MERS said it disagreed with the New York ruling. "We disagree with the court's interpretation because state courts in New York have already ruled that a written assignment of the note and mortgage by MERS, in its capacity as nominee, confers good title to the assignee," a MERS spokesperson said in a statement. Not all courts, however, are ruling against MERS. Last week, a U.S. Bankruptcy Court judge in Kansas affirmed MERS’s ability to foreclose on behalf of Countrywide Financial Corp., now owned by Bank of America (BAC). "The Kansas Bankruptcy Court held that the note and mortgage were never split due to this agency relationship," said MERS spokesperson Karmela Lejarde. "The Court found that Countrywide’s interest is secured, and it has the right to enforce the note and mortgage through its agent, MERS, or on its own by directing its agent to assign the mortgage to it." Write to Kerry Curry. Follow her on Twitter @communicatorKLC.

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