MERS rights upheld in largest foreclosure state
An appellate judge in California last week upheld the rights of the Mortgage Electronic Registration Systems to the deed of trust, giving MERS the right to foreclose, according to court documents.
San Diego County Judge Steven Denton late Friday upheld an earlier finding in Gomes v. Countrywide that gave MERS the authority to initiate a non-judicial foreclosure.
“The California decision validates the MERS process and procedures that we’ve used in non-judicial states for many years,” said Karmela Lejarde, spokesperson for MERS. “This decision, combined with a variety of other recent decisions in state and federal courts, confirms the legality of MERS’ role in the mortgage and helps to provide further clarity for all parties engaged in the foreclosure process.”
Ehud Gersten of the San Diego-based law firm Gersten Law Group filed the appeal on behalf of Jose Gomes.
"The court of appeals essentially decided that a homeowner in California cannot question a foreclosure," said Gersten, who plans to again appeal the decision to the state Supreme Court, in order to fight the slippery slope he says this decision creates.
"If MERS believes they now have a green light to foreclose in California, they are wrong," Gersten added.
According to RealtyTrac, the non-judicial state of California holds the largest volume of mortgages in default and foreclosure. Currently one in 200 households are facing foreclosure, totaling 67,072 filings. Florida is second with 21,671.
Gomes purchased his home in 2004 by borrowing $331,000 from KB Home Mortgage Company. Gomes also executed a promissory note which was secured by deed of trust, court documents show, stating MERS as beneficiary.
Gomes defaulted in 2009 and was sent a notice of default signed by an employee of the now defunct Countrywide, which was "apparently acting as loan servicer," the decision states.
"The recognition of the right to bring a lawsuit to determine a nominee's authorization to proceed with foreclosure on behalf of the noteholder would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures," wrote Judge Denton in his earlier decision, which three appellate court judges upheld..
Gersten said what struck him as most unusual was he gave closing arguments on Friday morning and then the decision was reached that afternoon. Normally it takes longer, he said.
"It was like they had already made up their minds," he said.
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