Holds MERS is Beneficiary and Has Right to Assign
Reston, Virginia, – October 6, 2015 – (RealEstateRama) — MERSCORP Holdings, Inc. today announced that the Court of Appeal of California for the Third Appellate District affirmed the demurrer granted by the California Superior Court, Nevada County.
In pdf Boyle v. Bank of America, N.A. (167 KB), 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. The trial court granted Bank of America and MERS a demurrer on each of the homeowner’s claims.
The Court of Appeal agreed with the trial court’s rejection of the homeowner’s claims, 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 rejected the borrowers’ reliance on pdf Glaski v. Bank of America (277 KB), in support of their fraud claim. In Glaski, the Fifth Appellate District permitted a homeowner to challenge the foreclosure based on alleged failures to properly transfer and assign the note and deed of trust, respectively, to the securitized trust that acquired the loan after origination. Here, the Court found that no state or federal court had adopted the Glaski holding and therefore, the Court held that it “… will follow the federal lead in rejecting this minority holding.” Further, the Court 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.”
For descriptions of cases and other materials pertaining to MERS’ business model and role in U.S. housing, please visit www.mersinc.org.
MERSCORP Holdings, Inc. is a privately held corporation that owns and manages the MERS® System and all other MERS® products. It is a member-based organization made up of thousands of lenders, servicers, sub-servicers, investors and government institutions. Mortgage Electronic Registration Systems, Inc. (MERS) serves as the mortgagee in the land records for loans registered on the MERS® System, and is a nominee (or agent) for the owner of the promissory note. The MERS® System is a national electronic database that tracks changes in mortgage servicing and beneficial ownership interests in residential mortgage loans on behalf of its members.
CONTACT: Janis Smith
Email: janiss (at) mersinc (dot) org