Mortgage

Another one bites the dust: MERS wins again

California Third Appellate District Court affirms MERS’ rights to assign a mortgage

MERSCORP Holdings announced Monday that it secured another victory over a homeowner who challenged its authority to assign a mortgage.

MERS, parent of the electronic mortgage registry with the same name, had its authority upheld this time by the Court of Appeal of California for the Third Appellate District, which heard a lawsuit brought against MERS and Bank of America (BAC) by homeowners claiming wrongful foreclosure.

In Boyle vs. Bank of America, the homeowners sued Bank of America and MERS for fraud and wrongful foreclosure, claiming that the MERS deed of trust was invalid because MERS lacked any interest in the promissory note, which rendered the MERS deed of trust and assignment of the deed of trust to Bank of America ineffective.

The homeowners alleged that Bank of America’s attempts to foreclose on the property were improper because the defective assignment failed to convey to Bank of America the right to foreclose.

The homeowners also claimed that Bank of America lacked the right to foreclose because of the failure to properly transfer the note to a securitized trust that owned the loan.

But a lower court granted Bank of America and MERS a demurrer on each of the homeowner’s claims, and the appellate court agreed, finding that MERS was the original beneficiary under the deed of trust and that its assignment of that interest was not fraudulent.

The Court also held that California’s non-judicial foreclosure scheme did not provide for a judicial action to determine whether the person initiating the foreclosure process is authorized.

“We are pleased that this Court found, once again, that MERS can hold and assign a mortgage,” said MERSCORP Holdings Vice President for Corporate Communications, Janis Smith. “MERS has legal authority to act on behalf of the lender, an authority granted by plain language in the mortgage document signed at closing by the borrower.”

The victory comes weeks after three separate Federal Courts also upheld MERS’ mortgage assignment authority.

Last month, MERS announced that the United States District Court for the Northern District of Georgia Newnan Division, the United States District Court for the Southern District of Texas Houston Division, and the United States District Court for the Southern District of New York dismissed lawsuits brought by plaintiffs who challenged the assignment of their mortgage by MERS.

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