Mass media takes MERS by storm and misses the big picture

Most housing publications – especially those focused on mortgage finance – have been covering the Mortgage Electronic Registration Systems issue for well over two years.

But the mainstream media – and now Jon Stewart – have just discovered MERS, the mortgage electronic registry created back in the 1990s to record mass transfers of mortgage assignments during the loan securitization craze.

Fast-forward a whole decade, and it seems the mainstream press is just now — years after the registry’s roll out — ready to bloody up MERS. 

But disputes about MERS are not new. They’re also not so cut and dry. 

Initial reports of MERS as a ‘defendant’ in numerous lawsuits over the registry’s ability to transfer certain property interests — namely the right to foreclose — have been around for a while. Not to mention, county recorders and district attorneys began filing suits over MERS recording fees well over two years ago.

In reality, MERS is more than a decade old, created at a time when no one cared about it because there was a blind national acceptance of loosening credit standards and mass loan securitizations to give everyone a piece of the property pie.

So is the new MERS craze an indication that the same authorities filing lawsuits today were painfully unaware of what was happening in regards to MERS from the mid-1990s through 2007? Perhaps, that’s the bigger issue.

MERS created for efficiency – albeit without a Congressional mandate (the most striking issue) – escaped the scrutiny of numerous politicians, lawyers, media pundits and homeowners until the foreclosure epidemic kicked off a few years back. 

Then, it became one of the villains de jure. But it’s strange for the mainstream press to jump on this issue a whole decade and a half after the MERS ‘key party’  swap began – as Jon Stewart calls it.

Another editorial popped up in The Washington Times, talking about the brewing issues surrounding MERS as counties file suit for compensation over recording fees.

Unfortunately, this editorial is also two years late to the party — judges are already making decisions in recording fee cases, and MERS has survived more than a few of them.

The general theme is state law governs, and this will create outcomes that are largely dependent on court interpretation.

A district court judge in Arkansas recently threw out a recording-fee suit against MERS, saying state law does not require mortgage assignments to be recorded.

Similarly, MERS has prevailed in other recording fee cases in, Florida, Illinois, Iowa and Missouri.

Recently, Oklahoma State District Judge Lori Walkley ruled in the County of Cleveland v. MERS that Oklahoma does in fact require the recording of mortgages – an argument that is potentially good for plaintiffs. But the judge added, the commissioners who filed the suit had no private right of action to enforce the state provisions in court, so the ruling ended up favoring MERS.

Granted this is a complex issue, with cases still pending, but the new MERS craze sweeping the press is as interesting as it is untimely.

The dispute is well over five years old and MERS is even older than that.

On the issue of whether MERS possesses the right to transfer foreclosure rights, state courts as high as the Idaho Supreme Court have already held that the registry by contract is empowered to transfer foreclosure rights as the rightful beneficiary of a deed of trust.

Nevada had a similar outcome. Other cases are still pending, and a MERS case pending at Oregon’s Supreme Court may in fact create an entirely different scenario for the registry.

The mainstream coverage to date avoids much of the contractual analysis already completed by numerous courts — and not all of those outcomes negated contracts with MERS as the named beneficiary, although this is not to say in other state cases MERS will succeed.

The point is judges across the country are well on their way to defining MERS’ fate from here, so it’s a difficult issue to sum up on the nightly news or The Daily Show.

The courts’ job is not to entertain us when reviewing state real estate laws and contracts, although I admit ‘MERS’ is a good name for a thriller.

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