Mortgage Loan Compliance | AG Sues MERS For Deceptive Practices, Will You?

On October 28, 2011 Delaware Attorney General Beau Biden sued the MERS (Mortgage Electronic Registration System). The suit charges that the parent corporation MERSCORP and MERS have repeatedly violated the state's Deceptive Trade Practices Act.

MERS was created for the purpose of reducing recording costs and the inefficiencies of transferring ownership of residential mortgages among mortgage brokers, lenders, Fannie Mae and Freddie Mac, the secondary market system and investors. The concept was to record the initial loan documents in the name of MERS and retain that record even as paper documents were passed along from originator to subsequent holders of the debt.

AG Biden's suit charges that MERS "engaged and continues to engage in deceptive trade practices that sow confusion among homeowners, investors, and other stakeholders in the mortgage finance system, seriously damaging the integrity of the land records that are central to Delaware's real property system and leading to improper foreclosure practices."

Listed below were three broad categories of the deception outlined:

• MERS, through its private mortgage registry knowingly obscures important information or provides inaccurate information to borrowers. The opacity of the registration database makes it difficult for consumers to know of or challenge inaccuracies in the MERS System which harms borrowers when MERS forecloses on borrowers in its own name, thus impairing a borrower's ability to raise defenses and hampering the ability to seek out the owner of the loan to pursue relief.

• MERS often acts as an agent without authority from its proper principal and is often unaware of the proper identity of that principal. Where the name of the owner of the mortgage loan recorded in the MERS system is not accurate, MERS often takes action on behalf of the purported owner without authority.

• MERS is effectively a "front" organization that has created a systemically important mortgage registry which does not properly oversee or enforce its own rules on participating members. Rather than maintaining an adequate staff, it works through a network of over 20,000 deputized non-employee corporate officers who act without meaningful oversight. It is this network that was behind the robo-signing of foreclosure documents.

Over the years loan documents became separated from the loans themselves and as more banks consolidated, big mortgage companies began to fail, and foreclosures ramped up, more and more loan transfers were not properly recorded on the MERS system and documents were actually lost. This has led, not only to improper foreclosure procedures but even instances where properties were foreclosed where there was no outstanding mortgage. MERS is currently the repository for about 65 million mortgages.

Biden is reported as saying that “American has historically had a robust recordation system where people could walk into the proper registry and "see, read, and touch" documents revealing who had a security interest in property.

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