Free home anyone? The Utah court ruled, and this cat just got himself a free casa

[Kingside]

Yes, it is a legal trick, but I think it is a clever one. The attorney seems to be seeking out defunct lenders who he can default. His argument probably is an extension of the Supreme Court decision in Landmark National Bank v. Kesler which basically held that MERS as nominee for a junior lienholder was not entitled to notice from a senior foreclosing lender under Kansas law. Hey, why not push it one step further to a borrower quiet title suit?

I think the problem is that the same logic does not apply to quiet title suits as there is a policy in those suits to encourage anyone with a claimed interest to be named and to appear to assert their interests to the property. Technical arguments to preclude a party in interest from appearing in a quiet title suit probably won’t fly, especially when the plaintiff is probably avoiding involving the servicer who is currently sending the borrower loan statements.

[Eugene]

[quote=SK in CV]
According to the article, MERS is NOT the beneficiary under the deed of trust. Which makes sense. I believe in most states, the beneficiary of a TD and the note owner must be the same party. And MERS has pretty consistently argued that they have no ownership interests in the notes or TD’s.[/quote]

MERS is “a mortgagee of record as nominee” for the real noteholder.

So the trick is that the noteholder does not have to be notified because he’s not recorded directly on the deed, and MERS does not have to be notified because it does not have an ownership interest.

What’s wrong with this picture?

[quote]Yes, it is a legal trick, but I think it is a clever one.[/quote]

I agree. The validity of the trick would depend on wording of the law in each state. In California specifically, it would seem to me that CCP 764.045(b) would prevent the court from voiding the mortgage under this approach.

And since this is all about notice rather than validity of the mortgage itself, either the lienholder, or MERS as its agent, can still appeal and get the mortgage reinstated.

[Eugene]

[quote=SK in CV]
According to the article, MERS is NOT the beneficiary under the deed of trust. Which makes sense. I believe in most states, the beneficiary of a TD and the note owner must be the same party. And MERS has pretty consistently argued that they have no ownership interests in the notes or TD’s.[/quote]

MERS is “a mortgagee of record as nominee” for the real noteholder.

So the trick is that the noteholder does not have to be notified because he’s not recorded directly on the deed, and MERS does not have to be notified because it does not have an ownership interest.

What’s wrong with this picture?

[quote]Yes, it is a legal trick, but I think it is a clever one.[/quote]

I agree. The validity of the trick would depend on wording of the law in each state. In California specifically, it would seem to me that CCP 764.045(b) would prevent the court from voiding the mortgage under this approach.

And since this is all about notice rather than validity of the mortgage itself, either the lienholder, or MERS as its agent, can still appeal and get the mortgage reinstated.

[Eugene]

[quote=SK in CV]
According to the article, MERS is NOT the beneficiary under the deed of trust. Which makes sense. I believe in most states, the beneficiary of a TD and the note owner must be the same party. And MERS has pretty consistently argued that they have no ownership interests in the notes or TD’s.[/quote]

MERS is “a mortgagee of record as nominee” for the real noteholder.

So the trick is that the noteholder does not have to be notified because he’s not recorded directly on the deed, and MERS does not have to be notified because it does not have an ownership interest.

What’s wrong with this picture?

[quote]Yes, it is a legal trick, but I think it is a clever one.[/quote]

I agree. The validity of the trick would depend on wording of the law in each state. In California specifically, it would seem to me that CCP 764.045(b) would prevent the court from voiding the mortgage under this approach.

And since this is all about notice rather than validity of the mortgage itself, either the lienholder, or MERS as its agent, can still appeal and get the mortgage reinstated.

[Eugene]

[quote=SK in CV]
According to the article, MERS is NOT the beneficiary under the deed of trust. Which makes sense. I believe in most states, the beneficiary of a TD and the note owner must be the same party. And MERS has pretty consistently argued that they have no ownership interests in the notes or TD’s.[/quote]

MERS is “a mortgagee of record as nominee” for the real noteholder.

So the trick is that the noteholder does not have to be notified because he’s not recorded directly on the deed, and MERS does not have to be notified because it does not have an ownership interest.

What’s wrong with this picture?

[quote]Yes, it is a legal trick, but I think it is a clever one.[/quote]

I agree. The validity of the trick would depend on wording of the law in each state. In California specifically, it would seem to me that CCP 764.045(b) would prevent the court from voiding the mortgage under this approach.

And since this is all about notice rather than validity of the mortgage itself, either the lienholder, or MERS as its agent, can still appeal and get the mortgage reinstated.

[Eugene]

[quote=SK in CV]
According to the article, MERS is NOT the beneficiary under the deed of trust. Which makes sense. I believe in most states, the beneficiary of a TD and the note owner must be the same party. And MERS has pretty consistently argued that they have no ownership interests in the notes or TD’s.[/quote]

MERS is “a mortgagee of record as nominee” for the real noteholder.

So the trick is that the noteholder does not have to be notified because he’s not recorded directly on the deed, and MERS does not have to be notified because it does not have an ownership interest.

What’s wrong with this picture?

[quote]Yes, it is a legal trick, but I think it is a clever one.[/quote]

I agree. The validity of the trick would depend on wording of the law in each state. In California specifically, it would seem to me that CCP 764.045(b) would prevent the court from voiding the mortgage under this approach.

And since this is all about notice rather than validity of the mortgage itself, either the lienholder, or MERS as its agent, can still appeal and get the mortgage reinstated.

[SK in CV]

[quote=Eugene]
MERS is “a mortgagee of record as nominee” for the real noteholder.

[/quote]

I’ve seen that “nominee” designation in quite a few cases. And I’ve seen some court decisions that refuse to acknowledge that the “nominee” has any standing to prosecute a foreclosure. But this isn’t that kind of standing case. I can’t find any actual pleadings posted anywhere on these particular cases which refer to the actual recorded documents. But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”. I’m not sure what that means. Trustee? (I don’t think so.) Trustor? Maybe. But apparently in these recorded documents, not the beneficiary.

[SK in CV]

[quote=Eugene]
MERS is “a mortgagee of record as nominee” for the real noteholder.

[/quote]

I’ve seen that “nominee” designation in quite a few cases. And I’ve seen some court decisions that refuse to acknowledge that the “nominee” has any standing to prosecute a foreclosure. But this isn’t that kind of standing case. I can’t find any actual pleadings posted anywhere on these particular cases which refer to the actual recorded documents. But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”. I’m not sure what that means. Trustee? (I don’t think so.) Trustor? Maybe. But apparently in these recorded documents, not the beneficiary.

[SK in CV]

[quote=Eugene]
MERS is “a mortgagee of record as nominee” for the real noteholder.

[/quote]

I’ve seen that “nominee” designation in quite a few cases. And I’ve seen some court decisions that refuse to acknowledge that the “nominee” has any standing to prosecute a foreclosure. But this isn’t that kind of standing case. I can’t find any actual pleadings posted anywhere on these particular cases which refer to the actual recorded documents. But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”. I’m not sure what that means. Trustee? (I don’t think so.) Trustor? Maybe. But apparently in these recorded documents, not the beneficiary.

[SK in CV]

[quote=Eugene]
MERS is “a mortgagee of record as nominee” for the real noteholder.

[/quote]

I’ve seen that “nominee” designation in quite a few cases. And I’ve seen some court decisions that refuse to acknowledge that the “nominee” has any standing to prosecute a foreclosure. But this isn’t that kind of standing case. I can’t find any actual pleadings posted anywhere on these particular cases which refer to the actual recorded documents. But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”. I’m not sure what that means. Trustee? (I don’t think so.) Trustor? Maybe. But apparently in these recorded documents, not the beneficiary.

[SK in CV]

[quote=Eugene]
MERS is “a mortgagee of record as nominee” for the real noteholder.

[/quote]

I’ve seen that “nominee” designation in quite a few cases. And I’ve seen some court decisions that refuse to acknowledge that the “nominee” has any standing to prosecute a foreclosure. But this isn’t that kind of standing case. I can’t find any actual pleadings posted anywhere on these particular cases which refer to the actual recorded documents. But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”. I’m not sure what that means. Trustee? (I don’t think so.) Trustor? Maybe. But apparently in these recorded documents, not the beneficiary.

[Eugene]

[quote=SK in CV] But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”.[/quote]

Here’s a sample MERS trust deed

http://www.mersinc.org/filedownload.aspx?id=215&table=ProductFile

MERS is explicitly named as one of the beneficiaries.

[Eugene]

[quote=SK in CV] But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”.[/quote]

Here’s a sample MERS trust deed

http://www.mersinc.org/filedownload.aspx?id=215&table=ProductFile

MERS is explicitly named as one of the beneficiaries.

[Eugene]

[quote=SK in CV] But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”.[/quote]

Here’s a sample MERS trust deed

http://www.mersinc.org/filedownload.aspx?id=215&table=ProductFile

MERS is explicitly named as one of the beneficiaries.

[Eugene]

[quote=SK in CV] But the article pretty clearly states that in these cases that MERS was not listed as the beneficiary, only that MERS was “another entity listed on the trust deed”.[/quote]

Here’s a sample MERS trust deed

http://www.mersinc.org/filedownload.aspx?id=215&table=ProductFile

MERS is explicitly named as one of the beneficiaries.

[Author]

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