A story by Ellen Brown gives a good summary of how the widespread use of a national electronic mortgage registry called MERS, designed to save mortgage securitizers the cost and bother of recording mortgages at the local courthouse, is backfiring spectacularly.
Although in a industry as large and diverse as the mortgage industry, one has to generalize with caution. Nevertheless, early in this century, the mortgage securitization industry took the view that recording mortgage at the local courthouse was a tad barbaric, and sought to streamline the process via the use of a national electronic mortgage registry called MERS.
There were two wee problems with this idea:
1. Real estate is governed by state law. A “mortgage” really consists of two elements, the note (the IOU) and the mortgage (in some states, called a deed of trust), which is the lien. In 45 of 50 states, the note is the critical instrument; the mortgage is a mere “accessory”. You need to demonstrate that you are the owner of the note (the “real party of interest”) in order to foreclose.
2. Many of the securitizers got very sloppy with the transfer of the note to the securitization entity, a trust. Theyv’e tried to rely on MERS to prove ownership, or worse to foreclose in the name of MERS. A rising tide of state court decisions is nixing this approach.
The article muffs some details. It isn’t all 62 million HOMES (as the title suggests) that could be difficult to foreclose upon if challenged. MERS may have 62 million MORTGAGES, but this appears to include some second liens, and some of those are in the five states where MERS is hunky dory. And not all states have MERS-unfavorable rulings on the books. But judges in some states are looking to decisions in other, so the fact that quite a few states have important decisions against MERS will make it easier for judges in other states to take that position.
The finesse that MERS has tried to use, when challenged, is that it is a nominee. But in most states, the real party in interest has to be the plaintiff, a mere nominee can’t take legal action without the real party in interest (in this case, the note owner) also joining the action. Moreover, a nominee is a party authorized to act on behalf of another party. But there is no evidence, no paper trail to demonstrate that MERS is authorized to act on behalf of the trust, nothing contemplated in the pooling and servicing agreement that governs the securitization, no fees paid by the trustee to MERS, no agreement, etc.
The article cites a recent case in California which accepts MERS’s contention that it is a nominee, but finds that is insufficient for MERS to foreclose:
The latest of these court decisions came down in California on May 20, 2010, in a bankruptcy case called In re Walker, Case no. 10-21656-E–11. The court held that MERS could not foreclose because it was a mere nominee; and that as a result, plaintiff Citibank could not collect on its claim. The judge opined:
Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.
In support, the judge cited In Re Vargas (California Bankruptcy Court); Landmark v. Kesler (Kansas Supreme Court); LaSalle Bank v. Lamy (a New York case); and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court). (For more on these earlier cases, see here, here and here.) The court concluded:
Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case.
The broad impact the case could have on California foreclosures is suggested by attorney Jeff Barnes, who writes:
This opinion . . . serves as a legal basis to challenge any foreclosure in California based on a MERS assignment; to seek to void any MERS assignment of the Deed of Trust or the note to a third party for purposes of foreclosure; and should be sufficient for a borrower to not only obtain a TRO [temporary restraining order] against a Trustee’s Sale, but also a Preliminary Injunction barring any sale pending any litigation filed by the borrower challenging a foreclosure based on a MERS assignment.
While not binding on courts in other jurisdictions, the ruling could serve as persuasive precedent there as well, because the court cited non-bankruptcy cases related to the lack of authority of MERS, and because the opinion is consistent with prior rulings in Idaho and Nevada Bankruptcy courts on the same issue.
Earlier cases focused on the inability of MERS to produce a promissory note or assignment establishing that it was entitled to relief, but most courts have considered this a mere procedural defect and continue to look the other way on MERS’ technical lack of standing to sue. The more recent cases, however, are looking at something more serious. If MERS is not the title holder of properties held in its name, the chain of title has been broken, and no one may have standing to sue. In MERS v. Nebraska Department of Banking and Finance, MERS insisted that it had no actionable interest in title, and the court agreed.
Yves here. Some of the earlier decisions have actually been pretty tough too. In Kesler, the Kansas Supreme Court ruled:
The relationship that MERS has to Sovereign [the creditor] is more akin to a straw man than to a party possessing all the rights given a buyer….in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.
The reason some foreclosures have been performed in the name of MERS is a combination of laziness plus inability to prove, or in some cases, even determine, which trust (the foreclosure should be filed in the name of the owner, which would be the securitization entity, a specific trust) owns the note. Judges, when the foreclosure is challenged, have tended to dismiss the foreclosure without prejudice, meaning if someone can show that they own the note, they can then foreclose (no one is disputing that the borrower owes someone money; the question is whether the party in court is the right one. This isn’t an idle concern. There are cases where the same note has been sold into more than one trust, exposing the borrower to the risk that it could be hit multiple times for the same debt if the courts get cavalier about foreclosure).
Why are judges getting bolder? After all, as some readers will inevitably protest, the result looks inequitable, some people get to live in free houses.
First, comparatively few people contest foreclosures. If you can’t afford the house, why fight to keep it? The vast majority are victims of servicing errors they can’t get resolved, or people who have filed Chapter 13 bankruptcies, where the lender is trying to pierce the bankruptcy stay and seize the house. There are far more people getting “free” houses because they have stopped paying their mortgage but the bank has not foreclosed on them.
Second, at least in some jurisdictions, judges may be of the view that banks are foreclosing (and clogging up their courts) rather than work with borrowers (for most other legal matters, judges like to see that the parties have made a good faith effort to resolve their dispute before going to court). There is evidence to support that; foreclosure rates are lower on bank-owned mortgages (where there are incentives to reduce losses and take half a loaf by doing a mod) than on securitized mortgages (where the servicer is paid to foreclose and is not paid to mod, except when bribed to do so by special Treasury programs). Normally, you’d expect judges to favor banks over deadbeats, so the fact that that increasing numbers are deciding against them says they are troubled by the legal issues (abuse of process) and/or the lack of good faith dealing (efforts to remedy the situation by taking a meaningful haircut, as opposed to a mere catch up plan, which includes paying back late fees, usually charged in violation of Federal law so as to produce more compounding of fees).
These cases are on the verge of a tipping point, where the focus shifts from what these decisions mean to borrowers, to what they mean for investors. The officialdom seems to fantasize that somehow, the private securitization market will come to life, but someone needs to deal with this dead body in the room before than can happen.
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This whole phenomenon fascinates me. It seems that technically, legalistically, the banks have abdicated their own monopoly of land ownership. (In addition to how morally invalid this land distribution was to begin with. So let’s dispose of the “deadbeat borrower” angle: However distasteful some of the borrowers may be, the banks themselves have never been anything more than might-makes-right unproductive squatters on the land. Surely that’s infinitely more distasteful.)
Hernando de Soto has been making the broader point that this abdication of even the morally tenuous paper system represents the abdication of the rule of law itself.
So the status quo distribution has no stable validity by any measure.
Of course, just as the rule of law has been intentionally abrogated through de jure deregulation and de facto Hobbesianism via regulators promisicuously “forbearing” what rump responsibilities they still do legally have, so here we can expect the system to try to compensate for its unintentional lawlessness by adding intentional lawlessness. They’ll probably pass laws and dictate decrees, seeking results like the fiat declaration of MERS’s “standing”. (That would probably be easier than to take action against so-called “strategic” defaulters, for example.)
We see how the Tower of Babel reveals new, more unstable, more top-heavy layers all the time.
What were the grown-ups doing when this ludicrous system was introduced? Or are there no grown-ups any more?
There were no grown-ups in the raging FIRE economy.
Setting up the system was incredible hubris — and then they failed fundamentally to follow the steps required for the system that they established. I have to think that there was some plan to lobby for a Federal overlay to the property laws that failed – some ambitious plan to make things more uniform on a multi-state level. Or maybe they just never expected a mortgagor to have the cojones to fight, or a Judge the guts to challenge an entire system. Otherwise, what was done was negligent on a scale that boggles the mind.
Property ownership and its regulation, along with much of banking, are creatures of State law. Period. And there are some very, very old concepts involved in modern methods of depriving a person of their right to property. How the folks who set up MERS failed to comprehend that they were in one of the few businesses fundamentally incompatible with paperless systems is beyond me.
André Malraux, the French novelist, described a country priest who had heard confessions for many decades and summed up what he had learned about human nature in two statements: “First of all, people are much more unhappy than one thinks…and second, there is no such thing as a grown-up person.”
Above is reply to dearieme, re ‘grownups.’
Psychologists would agree with that too.
one of MERS selling points was that it sidestepped local government fees and taxes that would have to be paid to transfer a deed properly each time the mortgage was sold or securitized. I can understand why a Judge would take a dim view of this. Part of the reason those taxes are paid is to cover the cost of local government court systems that enforce contracts. By using MERS, the banks were freeloading.
Yves said “Why are judges getting bolder?”
From: http://www.brennancenter.org/content/section/category/state_judicial_elections
“Thirty-nine states elect at least some of their judges, and the vast majority of cases in the United States are heard by elective courts.”
Judges hate being reversed by a higher court but they also hate losing an election. It is no accident that the state courts are leading the charge.
Imagine running for office against an opponent who says you let a bank foreclose on a home when the bank did not own the note. Or worse that you allowed two different banks to pursue an action against a homeowner for a single note!
This is CYA.
Surf your local property tax database some time. The local bar, medical and dental association members are always major local real estate investment players.
Their names are all over the investment scene in the smaller strip centers, office parks, apartment complexes and franchised fast food outlets.
The local judges aren’t getting bolder, they are figuring it out!
The basic rule of equity is “to get equity, you must do equity.” In short, don’t come to court asking to enforce the law if you haven’t abided by it yourself.
So what do they do in SC? As some wag said, ‘Too small for a state, too large for an insane asylum.’
Jim in SC
There are folks in your part of the World that are starting to get it.
God, how I love that quote.
“MERS in FACT… IS NOT THE MORTGAGEE”
Excellent case:
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
v.
JON E. SAUNDERS et al.
Docket: Cum-09-640.
Supreme Judicial Court of Maine.
Argued: June 15, 2010.
Decided: August 12, 2010.
http://stopforeclosurefraud.com/2010/08/13/mers-is-not-in-fact-a-mortgagee-mortgage-electronic-registration-systems-inc-v-saunders%E2%80%8E/
The abdication of the rule of law: part II, unsecured debt. The credit card juggernaut known as Capital One had an entity that did not allow it to conduct itself as a bank across the US, because it was NOT originally formed as a National Bank. When it when into markets outside of its state licensure, it was illegally operating as a bank, without a banking license. All the debt and debt collections it attempted were found to not have standing in states where you need to get a state banking licensing to do business. Additional deceptive practices include enticing as new credit card business, the transfer of old debt, outside the statute of limitations for lawsuits, to be rolled into new accounts, with very little credit being offered over and above the old debt. http://www.wvago.gov/press.cfm?ID=502&fx=more
See court ruling against claims for its lack of national Bank corporate status.
http://www.wvsd.uscourts.gov/district/opinions/pdf/CapitalOne08cv165.pdf
‘There are far more people getting “free” houses because they have stopped paying their mortgages but the bank has not foreclosed on them.’
SO VERY TRUE! I’d like to see a stacked bar chart showing cumulative months spent living in a home without paying anything (Defaulters in BLUE / MERS-related-fuckery-resulting-in-a-free-home in RED).
Thank you Schnaps. Use a log chart because otherwise the bars aren’t going to fit on the same page.
The whole system is a fraudulent mess, and I can’t say whether MERS has helped or made it worse on balance.
I am encouraged that judges are taking a dim view of MERS. If you want to convey the loan, endorse and record both the loan and the mortgage/deed of trust. Does that action impede securitization? No, it just makes it go slower.
Now, a lot of securitization was done with the recognition that a high percentage of loans would default. These securitizations were the reference entities for those lovely unratable CDOs and their companions CDS.
Now, anything that attacks or reduces the requirement for recordation at the county courthouse is an abrogation of due process. It is unconstitutional to attempt to foreclose when you have no standing.
Whatever you make think or feel about the judges, as regards this business of attempting to foreclose without standing, we should, one and all, be supporting those judges who demand standing.
No one here has addressed breaking the chain of title. It IS a big deal,try buying or selling a property with a cloud on the title.You could buy an REO and not get good title. Lots of “quiet title” actions coming down the road.
Tom,
you are dead on. In most states, your only are conveyed “what they have” in a foreclosure deed. Kind of like a quit claim. In addition, most big title companies are writing in “exceptions” to missing links in the chain that are there due to securitized products and missing recordings due to MERS.
Fog and Tom:
I was getting ready to say a similar thing. People might be able to live in these foreclosed houses because of unclear titles, but the homes are practically unsaleable until some of these title defects are cleared up. I would think it would be very difficult to get a mortgage on one of them. Imagine buying a house and 6 months later some one shows up with a clean right to the property.
No one should be allowed to foreclose on a property unless they have a clean right to.
Of course, we may just see a change in practice if this becomes incredibly widespread. Because the problem isn’t with sale, it’s with insuring title (which no one will give you a loan without), this issue is not a live problem for all cash deals or those where you can quiet title by use of the relatively short adverse possession statutes that take into account payment of property taxes on the property. Don’t you guys have these? — The statute may be 20 or 30 years for people who just squat, but if you are publicly paying the property taxes on a place, the statute is only 2 or 5 years.
In short, it does cloud title, but I don’t see it as an insurmountable issue. Perhaps I’m just a Western state kind of girl where we deal favorably with people inhabiting and productively using a piece of land over those with a theoretical claim to it. The state law I know may be clouding my view of it.
Vermont land records are recorded at the municipal level. There are 251 land records. Some lucky individuals, manage to have their property straddling two towns. Vermont records are not currently online. You need to send a lawyer or paralegal for a title update.
In this day and age, mortgage servicings rights are transferred numerous times. Now imagine many of the banks and/or mortgage servicers involved have gone out of business or have merged with other entities.
Tracking assignments and discharges, tracking corrective assignments, tracking interim assignments, is a royal pain and an expense that is ultimately borne by the consumer in terms of higher servicing fees and higher lawyers fees.
The concept of MERS in a national mortgage market makes sense. I merely surprised that MERS had not worked with the respective State legislatures to make sure the foreclosure process would withstand any challenges under State law.
Damn. Now the whole concept of a few easements on a piece of Vermont property is going to keep me up at night!
Looks like Steven Keen might be right. We might just get that debt jubilee.
Me, I’m going to keep watching TV. All those phony debt crisis counselors. In a year, maybe two, when a bit more dust settles, will we see packs of eager attorneys and an avalanche of quiet title motions? Sign me up !!
Hey look. I’m paying my mortgage, but if I’ve been MERSed & don’t have a clean title, what good is that? If a quiet title motion results in a clear relationship between my checkbook & the mortgage servicer, I’m all for it. If not, too bad for them.
So MERS gets set up so banks and securitizers can screw the states out of revenue and make it easy for the NVA financial engineering schemes to rip off the fools who bought into it and it blows up in the face of those who were mixing the gun cotton and glycerin. Sweet Justice!!! And these idiots thought they understood risk diversification!
One comment that you make may not be true, and to assume that it is may be that tipping point that judges are deciding for themselves. You state;
“(no one is disputing that the borrower owes someone money; the question is whether the party in court is the right one. This isn’t an idle concern. There are cases where the same note has been sold into more than one trust, exposing the borrower to the risk that it could be hit multiple times for the same debt if the courts get cavalier about foreclosure).”
You have made a statement that questions itself. If there are multiple claims, and multiple sales of the loan, the loan in question has been completely paid, hasn’t it? The only thing missing was the reconveyance to the homeowner that was the next legal responsibility, but which was ignored.
please consider this. You recall how AIG insured, and that all of these “banks” took out insurance?, Recall the bailouts of trillions to the banks? They paid these mortgages as well. How many times has the loan been sold for full repayment? When was any of the money applied to the balance for the legal owner? If it was in two pools, one paid the obligation (if not both) and no obligation exists.
Please try to think in terms of the need to prove that an obligation still exists first, then move backward. The facts need to be arranged in their proper order to determine whom owes whom.
bird,
My claim is correct, drafting might not be clear enough.
One $100,000 mortgage. Sold into 3 trusts. You have $300,000 of debt out there when the borrower signed up for only $100,000.
Now $200,000 of that $300,000 is a forgery….so you’d need to see the notes and do serious document forensics. But the risk is real. A bank in West Va sold notes something like ten times each.
There is more mundane confusion possible….mortgage originally assigned to one pool, then moved to a later pool, but not removed from spreadsheet (which was how closings on securitizations were done in the later days….spreadsheets with loan #s e-mailed, with funds transferred when the list was verified).
Another problem is the terrible controls in MERS. Any “MERS member” can go in an assign the mortgage to another party. And from what I can tell, the system does not provide for an audit trail either.
I think you and Bird are saying pretty nearly the same thing. Bird’s point about insurance subrogation is also very interesting. If I wanted to tie up a foreclosure forever, I’d be arguing the plaintiff needed to prove it owned the note, and show it hadn’t received any type of swap or insurance proceeds that would give a subrogation claim to the “insurer.”
Ellen Brown’s full story cites criminal actions currently being brought against MERS. Which means I won’t feel the least guilty when it collapses & we all get out of our mortgages scot-free.
MERS remains the great sleeper issue of the whole housing debacle. There are two issues. First, MERS was created to do things on the cheap and avoid paying fees. Second, the whole mindset behind the securitization process was to treat the notes as pure monetary instruments. This led to the note being split from the deed and then the note itself being splintered among CDOs and CDOs of CDOs. We see this a lot actually. It is a main feature, perhaps the main feature of how finance plays out in the paper economy. The actual rules, physical limitations, and historic dynamics of particular markets are quite simply ignored. That is the real world and the real economy don’t matter. They are to be abstracted out as much as possible because they just get in the way of manipulating financial instruments. Bubbles in stocks and commodities, the infamous food spikes of a few years ago, the ongoing pumped up price of oil, the pressure on Main Street firms to deliver short term profits even if it kills them, and, of course, MERS are all examples of this. We have delivered our economy over to gamblers and they treat it like a casino. How can any of us be surprised? Still it is something when reality reasserts itself and comes back to bite them.
Another missing point about MERS is that they shield the “true beneficial owner” so that no one in the public knows who actually owns the loan. Also, on MOM loans “MERS as Original Mortgagee” where the deed actually got recorded as MERS as Mortgagee from the get-go, the predatory lender was off the hook immediately because they “sold the loan” and the buyer is unknown, except to the folks with access to the MERS database.
Taking what Voltron says:
“MERS selling points was that it sidestepped local government fees and taxes that would have to be paid to transfer a deed properly each time the mortgage was sold or securitized. By using MERS, the banks were freeloading.”
A federal law that states MERS records are legally invalid if they have not paid all the “sidestepped local government fees and taxes that would have to be paid to transfer a deed properly each time the mortgage was sold” within one year of this laws passage.
1] This help local governments which are on the brink.
2] If you really own it you’ll pay it otherwise it will be taken off your books. This will stop frivolous foreclosures and false accounting.
Incidentally, the vast majority of foreclosures are now people who have substantial equity in a property, but have lost their jobs. They are responsible people, underwater mortgages rarely go to foreclosure. We are currently systematically picking off people who have been responsible and have suffered a job loss [20% of the population] or an injury or illness that prevents them from working.
Good posting.On a different viewpoint, there is a lot of ways there is so we all can pick the right deal so in the end all of us will never regret any decisions that we made. Whether it is refinancing on simply obtaining a mortgage it is both still a big action. Talk to your mortgage company right now to get additional help.
Years ago, I forfeited a deposit on a condo when I changed my mind about buying it. My goodness, was I naive! The level of corruption in America has risen to the point that I would never even put down a deposit again. If some other fool wants to scoop me, be my guest.
The developer and the real estate agent were so slimy, I will never buy again.
Now this story comes along and reaffirms my belief that the entire enterprise we call real estate is corrupt beyond our imagination. The only way to teach these “people” a lesson is revolution by massive simultaneous default. Who needs credit anyway? Sadly, Americans would view such collective action as blasphemy against our national religion.
Sorry – I’m having one of those “take this house and shove it” moments.
The only way to teach these “people” a lesson is revolution by massive simultaneous default. Who needs credit anyway? Sadly, Americans would view such collective action as blasphemy against our national religion. Neil D
A solution is to bailout both borrowers AND savers with a sufficient and legal distribution of new legal tender fiat by the US Treasury (United States Notes):
Without increasing the national debt this would:
1) enable borrowers to pay down their mortgages to current market price levels.
2) compensate savers for years of suppressed interest rates.
3) fix the banks in nominal terms.
4) fix state tax revenues.
5) reflate the economy in general.
Inflation risk? Then raise reserve requirement to 100% to put banks out of the counterfeiting business. Then allow fundamental reform in money and banking including abolishing the government backed banking cartel.
Make “sufficient and legal” -> “sufficient and EQUAL”
Possibly the solution to our economic problems does not involve shifting around more pieces of paper.
Possibly the solution to our economic problems does not involve shifting around more pieces of paper. corey
The bankers have enslaved the US with less than paper; credit pyramided onto paper. A solution then is to replace the credit with paper (new legal tender fiat) and then abolish the ability of banks to pyramid via government privilege. The problem is not precious metals vs paper but government privilege vs liberty.
Gold is a banker’s tool to inflict and control artificial scarcity.
“Massive simultaneous default” would be fun to see if the bankers refuse to be reasonable. I hate the government backed fractional reserve banking cartel.
While I find all of this more than a tad amusing (like most here, I despise the banksters and simply love to see one of their machinations for making us all debt slaves forever, bite them on their collective and ample asses), it is also more than a tad complicated. But the real takeaway from this story is this – if you are bright but unemployed, learn a bit of finance and get a JD and you will be set for life. The legal wrangling to come from this will tie up the courts for a decade – at least. Even mediocre lawyers bill out at $200/hour – there’s a reason why so many of them are members of the “ownership society.”
Here are two current Class Actions involving MERSCORP
http://stopforeclosurefraud.com/2010/07/27/class-action-filed-figueroa-v-law-offices-of-david-j-stern-p-a-and-merscorp-inc/
Latest today
http://stopforeclosurefraud.com/2010/08/20/class-action-rico-suit-alleges-tens-of-thousands-of-new-york-foreclosure-frauds-orchestrated-by-foreclosure-mill-attorney-banks/
This is becoming mainstream.
This means that the US taxpayer will now become liable for the failure to enforce laws against fraud. The EU will be looking for redress as will all the others sold securities on the basis that they were AAA and correctly administered.
This will extend the depression considerably. Kleptocracy? You decide!
In my opinion anyone who has MERS going back to 1997-98 might have an issue with chain in title/ Clouded title.
Since these Mills are not only forging documents with the help of Lender Processing Services (LPS)and MERS the risks are even higher.
Forging/fabricating Assignments:
http://stopforeclosurefraud.com/lps-101/
http://stopforeclosurefraud.com/2010/03/12/topako-love-laura-hescott-christina-allen-eric-tate-officers-of-way-way-too-many-banks-part-deux-the-twilight-zone/
http://stopforeclosurefraud.com/2010/03/07/mortgage-assignments-as-evidence-of-fraud/
http://stopforeclosurefraud.com/2010/07/14/david-j-sterns-cheryl-samons-shannon-smith-assignment-of-mortgage-notary-fraud/
We all MUST follow the law and not take short cuts! These are titles to our “homes” and not to be messed with!
§ 226.18 Content of disclosures.
For each transaction, the creditor shall disclose the following information as applicable:
(a) Creditor. The identity of the creditor making the disclosures.
Here’s a simple question:
What happens when a homeowner pays off his mortgage? Who gives him a clear title on the house? MERS? Can they legally do that?
Psychoanalystus
The MERS issue has been known for some time but from what I’ve seen online, judges won’t even consider this as a defense in a real-world setting.
It opens an additional can of worms going back in the chain of title. What if MERS was involved in a foreclosure with a prior owner who now comes forward to declare since MERS was involved the sale was invalid and they are still the owner? Who holds title and who is liable for the title error? The Title insurance carrier? How far back can it go? To the beginning of MERS?
If so it could be a lot more than 62 million homes.
If the purchase had title insurance then the defect would be prior to the purchase and the title insurance company might actually have to pay out on their policy. As noted there are adverse possession laws in many states and they run the clock out on such claims This is why the title insurance companies get the big bucks. Assume its discovered after the short period of adverse possesion where you do have a title and pay the taxes, the title insurance company will have its lawyers go to court and take care of the matter.
Granted, the Courts have ignored the situation for a long time, but at least some of it was not their fault.
When MERS goes to Court, they take whatever position they need to win. Whatever they have to say to win, they do. Simply said, it is now catching up with them, because the law is not the same in all states. They have argued “we split the lien from the note” in Minnesota, and that kills them in 45 other states – such as Nebraska and Maine. Many states have either code or case law that says once the note is split from the mortgage, the mortgage is VOID. And VOID has no statute of limitations.
The concept of judicial estoppel is very simple. If you take a position in Court, you live with it – forever. MERS is now howling about the trap that they set for themselves, as it has now sprung shut on their head.
The only question left is how many other state’s supreme courts will have the intestinal fortitude to enforce the laws as Nebraska and Maine have?
How about this. Send a notice to your mortgage company that states that you request proof that they are the legal holders of your mortgage note. The notice goes on to state that if proof is not provided after a sufficient time(2-3 months) that your mortgage payments will be redirected to an escrow account. This escrow account can be redeemed by the mortgage company when/if they can prove that they are the legal holder of the note.
If the mortgage company cannot provide proof: Continue to make payments into the escrow account until adverse possession conditions are met. File for a quiet title and collect the funds in the escrow account.