MERS Brief

8 Jun

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TABLE OF CONTENTS
TABLE OF AUTHORITIES …………………………………………………………………………. i
INTERESTS OF AMICI CURIAE…………………………………………………………………..1
PRELIMINARY STATEMENT …………………………………………………………………….2
ARGUMENT……………………………………………………………………………………………….4
I. The MERS System Was Designed Without Regard to Consumers’ Rights4
II. MERS’ Claims That the MERS System Is Beneficial to
Consumers Are Unsupported. …………………………………………………………….6
III. Homeowners Have a Right to Know Who Owns Their Loans………………..8
IV. The MERS System Causes Significant Confusion Among Borrowers,
and Has a Particularly Detrimental Impact on the Elderly and
Other Vulnerable Borrowers Frequently Victimized by
Predatory Lenders. ………………………………………………………………………… 14
V. The Public Has a Significant and Enduring Interest in Preserving and
Protecting the Free Public Databases Created by the Land and Court
Records of This Nation. …………………………………………………………………. 18
A. Public land and court data records facilitate research investigating
the root causes of a variety of mortgage and other land related
problems………………………………………………………………………………….. 18
B. The public databases have played an important role in facilitating
understanding and government response to the recent “foreclosure
boom.”…………………………………………………………………………………….. 23
C. Through its penetration of the public databases MERS has caused
a dramatic deterioration in the quality and quantity of publicly
available information. ……………………………………………………………….. 28
D. The MERS Shield Creates an Irretrievable Void in the Property
Records that Harms Many Constituencies……………………………………. 32
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E. Restoration and enhancement of the public database is critical to enable
government to function effectively……………………………………………… 33
F. More, not less public data is needed to enable a carefully targeted and
rapid governmental response to problems in the housing market. …… 35
VI. MERS’ Subversion of the Public Policy Behind Public Recordings Costs
County and City Clerks Over a Billion Dollars. ………………………………… 38
VII. MERS Lacks Standing to Bring Foreclosure Actions in Its Name……….. 39
CONCLUSION…………………………………………………………………………………………. 46
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TABLE OF AUTHORITIES
Cases
Altegra Credit Co. v. Tin Chu et al.,
No. 04326-2004 (Kings County Supreme Ct. March 25, 2004) ………………. 24, 36
Associates Home Equity v. Troup,
343 N.J. Super. 254 (App. Div. 2001)……………………………………………………….. 21
Countrywide Home Loans v. Hannaford,
2004 WL 1836744 (Ohio Ct. App. Aug. 18, 2004). ……………………………………. 17
Deutsche Bank National Trust Company as Trustee v. Primrose,
No. 05-25796 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006);…………………………. 46
Everhome Mortgage Company v. Hendriks,
No. 05-024042 (N.Y. Sup. Ct., Suffolk Cty., June 27, 2006);………………………. 46
Freedom Mortg. Corp. v. Burnham Mortg., Inc.,
2006 WL 695467 (N.D. Ill., Mar. 13, 2006) ………………………………………………. 17
In re BNT Terminals, Inc.,
125 B.R. 963, 970 (Bankr. N.D. Ill. 1990)…………………………………………………. 45
Kluge v. Fugazy,
145 A.D.2d 537, 536 N.Y.S.2d 92 (2d Dept. 1988)…………………………………….. 44
LaSalle Bank v. Holguin, No. 06-9286, slip opinion (N.Y. Sup. Ct. Suffolk Cty.,
Aug. 9, 2006);…………………………………………………………………………………… 43, 45
LaSalle Bank v. Lamy,
2006 N.Y. Misc. Lexis 2127 (NY. Sup. Ct., Suffolk Cty., Aug. 17, 2006)……. 46
MERS v. Bomba,
No. 1645/03 (N.Y. Sup. Ct., Kings County). ……………………………………………… 48
MERS v. DeMarco,
No. 05-1372, slip op. (N.Y. Sup. Ct., Suffolk Cty., April 11, 2005) ……………… 46
MERS v. Griffin,
No.16-2004-CA-002155, slip op. (Fla. Cir. Ct. May 27, 2004)…………………….. 49
MERS v. Ramdoolar,
No. 05-019863 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2006);………………………… 46
MERS v. Shuster,
No. 05-26354/06 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006)………………… 44, 46
MERS v. Trapani,
No. 04-19057, slip op. at 1 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2005):……….. 48
MERS v. Wells,
No. 06-5242, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty., Sept. 25, 2006)………… 45
MERS v.Delzatto,
No. 05-020490 (N.Y. Sup. Ct., Suffolk Cty., Dec. 9, 2005)…………………………. 46
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MERS, Inc. v. Parker,
No. 017622/2004, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty. Oct. 19, 2004) …… 46
MERS, Inc. v. Schoenster,
No. 16969-2004, (N.Y. Sup. Ct., Suffolk Cty., Sept. 15, 2004); …………………… 47
MERS. v. Burek,
798 N.Y.S.2d 346 (N.Y. Sup. Ct. 2004)…………………………………………………….. 44
MERS. v. Burek,
798 N.Y.S.2d 346, 347 (N.Y. Sup. Ct., Richmond Cty. 2004)……………………… 46
Merscorp, Inc. v. Romaine,
No. 9688/01, slip op. (N.Y. Sup. Ct., Suffolk Co. May 12, 2004)…………………….8
Miguel v. Country Funding Corp.,
309 F.3d 1161 (9th Cir. 2002). …………………………………………………………………. 16
Mortg. Elec. Registration Sys. v. Estrella,
390 F.3d 522 (7th Cir. 2004) ……………………………………………………………………. 16
Mortg. Elec. Registration Sys. v. Neb. Dep’t of Banking & Fin.,
704 N.W.2d 784 (Neb. 2005) ……………………………………………………………… 16, 17
Mortg. Elec. Registration Sys., Inc. v. Griffin,
No.16-2004-CA-002155, slip op. (Fla. Cir. Ct. May 27, 2004)…………………….. 47
Mortg. Elec. Registration Sys., Inc. v. Azize,
No. 05-001295-CI-11 (Fla. Cir. Ct. Pinellas Cty. Apr. 18, 2005)………………….. 47
Mortgage Electronic Registration Systems, Inc. v. Rees,
2003 Conn. Super. LEXIS 2437 (Conn. Superior Ct. September 4, 2003). ……. 44
People v. Albertina,
09141-2005 (Kings County Supreme Ct. Sept. 28, 2006) ………………………. 24, 36
People v. Constant,
No. 01843A-2006 (Suffolk Supreme Ct. Oct. 12, 2006)( ……………………….. 24, 36
People v. Larman,
No. 06253-2005 (Kings County Supreme Ct. Sept. 20, 2006) ………………… 24, 36
People v. Sandella,
No. 02899-2006 (Kings County Supreme. Ct. Sept. 27, 2006) ……………….. 24, 36
Roberts v. WMC Mortg. Corp.,
173 Fed. Appx. 575 (9th Cir. 2006). …………………………………………………………. 16
Taylor, Bean & Whitaker, Mortg. Corp. v. Brown,
583 S.E.2d 844 (Ga. 2003) ………………………………………………………………………. 47
Statutes
Home Mortgage Disclosure Act, 12 USC § 2801 et. seq ………………………………… 28
N.Y. Banking Law § 6-1…………………………………………………………………………….. 31
N.Y. General Business Law § 349……………………………………………………………….. 18
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N.Y. Gen. Bus. Law § 771-a……………………………………………………………………….. 31
N.Y. Real Prop. Acts. Law § 1302 ………………………………………………………………. 31
Truth-in-Lending Act, 15 U.S.C. § 1601 et seq………………………………………… 15, 16
Truth in Lending Act, Regulation Z § 226.23 ……………………………………………….. 15
U.C.C. §§ 9-203(g), 9-308(e); …………………………………………………………………….. 44
Regulations
69 Fed. Reg. 16,769 (Mar. 31, 2004),…………………………………………………………… 16
Secondary Sources
40 Millionth Loan Registered on MERS (Inside MERS, May/ June 2006),
available at http://www. mersinc.com/newsroom/currentnews.aspx …………….. 42
Alan M. White and Cathy Lesser Mansfield,
Literacy and Contract, 13 STAN. L & POL’Y REV 233 …………………………………. 19
Andrew Harris,
Suffolk Judge Denies Requests by Mortgage Electronic Registration Systems,
N.Y. LAW J. (Aug. 31, 2004) ……………………………………………………………………. 47
Bunce, Harold, Gruenstein, Debbie et al.,
Subprime Lending: The Smoking Gun of Predatory Lending? (HUD 2001),
http://www.huduser.org/Publications/pdf/brd/12Bunce.pdf ………………. 24, 27, 32
D. Rose, Chicago Foreclosure Update 2005, http://www.nticus.
org/currentevents/press/pdf/chicagoforeclosure_update.pdf…………………….. 25
D. Rose, Chicago Foreclosure Update 2006 (July), http://www.nticus.
org/documents/ChicagoForeclosureUpdate2006.pdf ………………………………. 25
Daniel Immergluck & Geoff Smith,
The External Costs of Foreclosure: The Impact of Single-Family Mortgage
Foreclosures on Property Values,
17 Housing Pol’y Debate, Issue 1 (2006)……………………………………………… 28, 39
David Rice, Predatory Lending Bill Caught in Debate, Winston-Salem Journal,
April 27, 1999………………………………………………………………………………………… 30
Debbie Gruenstein & Christopher Herbert,
Analyzing Trends in Subprime Originations and Foreclosures: A Case Study of
the Boston Metro Area, 1995-1999 (2000), http://www.abtassociates.com
/reports/20006470781991.pdf ………………………………………………………………….. 27
Duda & Apgar, Mortgage Foreclosures in Atlanta: Patterns and Policy Issues,
2000-2005 (2005) …………………………………………………………………… 30, 35, 38, 39
Federal Financial Institutions Examination Council,
A Guide to HMDA: Getting it Right! (Dec. 2003). ……………………………………… 41
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Jill D. Rein,
Significant Changes to Commencing Foreclosure Actions in the Name of MERS,
available at http://www.usfn.org/AM/Template.cfm?Section=
Article_Library&template=/CM/HTMLDisplay.cfm&ContentID=3899……….. 49
Kathe Newman & Elvin K. Wyly,
Geographies of Mortgage Market Segmentation: The Case of Essex County,
New Jersey, 19 Housing Stud. 53, 54 (Jan. 2004) ………………………………………. 38
Kathleen C. Engel, Do Cities Have Standing? Redressing the Externalities of
Predatory Lending, 38 Conn. L. Rev. 355 (2006). ……………………………………… 25
Kimberly Burnett, Bulbul Kaul, & Chris Herbert,
Analysis of Property Turnover Patterns in Atlanta, Baltimore, Cleveland and
Philadelphia (2004), http://
http://www.abtassociates.com/reports/analysis_property_turnover_patterns.pdf 27, 31
Kimberly Burnett, Chris Herbert et al.,
Subprime Originations and Foreclosures in New York State: A Case Study of
Nassau, Suffolk, and Westchester Counties (2002)……………………… 21, 24, 30, 31
Les Christie, “Foreclosures Spiked in August,” (Sept. 13, 2006), available at:
http://money.cnn.com/2006/09/13/real_estate/foreclosures_spiking/index.htm?po
stversion=2006091305 ……………………………………………………………………………. 39
Lindley Higgins, Effective Community-Based Strategies for Preventing
Foreclosures,1993-2004 (2005) ………………………………………………………….. 26, 27
Lorain County Reinvestment Fund,
The Expanding Role of Subprime Lending in Ohio’s Burgeoning Foreclosure
Problem: A Three County Study of a Statewide Problem, (2002),
http://cohhio.org/projects/ocrp/SubprimeLendingReport.pdf……………………….. 23
Lynne Dearborn, Mortgage Foreclosures and Predatory Lending in St. Clair
County, Illinois 1996-2000 (2003) ……………………………………………………………. 23
Margot Saunders and Alys Cohen,
Federal Regulation of Consumer Credit: The Cause or the Cure for Predatory
Lending? (Joint Center for Housing Studies 2004)……………………………………… 28
Neal Walters & Sharon Hermanson,
Subprime Mortgage Lending and Older Borrowers (AARP Public Policy
Institute), Data Digest Number 74 (2001)………………………………………………….. 28
Neighborhood Housing Services (NHS) of Chicago,
Preserving Homeownership: Community-Development Implications of the New
Mortgage Market (2004) …………………………………………………………………………. 26
Paul Bellamy, The Expanding Role of Subprime Lending in Ohio’s Burgeoning
Foreclosure Problem: A Three County Study of a Statewide Problem, 1994-2001
(2002)……………………………………………………………………………………………………. 29
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Phyllis K. Slesinger and Daniel McLaughlin,
Mortgage Electronic Registration System, 31 IDAHO L. REV. 805, 811, 814-15
(1995)……………………………………………………………………………………………………….9
Ramon Garcia, Residential Foreclosures in the City of Buffalo,
1990-2000 (2003) ……………………………………………………………………………… 24, 27
Richard Lord, AMERICAN NIGHTMARE: PREDATORY LENDING AND THE
FORECLOSURE OF THE AMERICAN DREAM 157 (Common Courage Press 2005). 22
Richard Stock, Center for Business and Economic Research,
Predation in the Sub-Prime Lending Market: Montgomery County Vol. I., 1994-
2001 (2001), http://www.mvfairhousing.com/cber/pdf/
Executive%20summary.PDF………………………………………………………………. 26, 29
Robert Avery, Kenneth Brevoort, Glenn Canner,
Higher-Priced Home Lending and the 2005 HMDA Data (Sept. 8, 2006) …….. 28
Steve C. Bourassa, Predatory Lending In Jefferson County: A Report to the
Louisville Urban League (Urban Studies Institute, University of Louisville)
(December 2003) ……………………………………………………………………………………. 35
T. Nagazumi & D. Rose,
Preying on Neighborhoods: Subprime mortgage lending and Chicagoland
foreclosures, 1993-1998 (Sept. 21, 1999 …………………………………… 25, 26, 31, 34
The Reinvestment Fund, Mortgage Foreclosure Filings in Delaware (2006) …… 23
The Reinvestment Fund, A Study of Mortgage Foreclosures in Monroe County and
The Commonwealth’s Response (2004) …………………………………………………….. 23
The Reinvestment Fund, Mortgage Foreclosure Filings in Pennsylvania (2005). 23
William C. Apgar & Mark Duda, Collateral Damage: The Municipal Impact of
Today’s Mortgage Foreclosure Boom 1996-2000 (May 11, 2005),
http://www.nw.org/Network/neighborworksprogs/
foreclosuresolutions/documents/Apgar-DudaStudyFinal.pdf…………………. passim
William Apgar, The Municipal Cost of Foreclosures: A Chicago Case Study
(Feb. 27, 2005) http://www.hpfonline.org/PDF/Apgar-
Duda_Study_Full_Version.pdf………………………………………………………. 25, 26, 38
Zach Schiller, Foreclosure Growth in Ohio (2006) ………………………………………… 23
Zach Schiller and Jeremy Iskin, Foreclosure Growth in Ohio: A Brief Update
(2005), http://www.policymattersohio.org/pdf/
Foreclosure_Growth_Ohio_2005.pdf………………………………………………………… 23
Zach Schiller, Whitney Meredith, & Pam Rosado, Home Insecurity 2004:
Foreclosure Growth in Ohio, available at
http://www.policymattersohio.org/pdf/Home_Insecurity_2004.pdf………………. 23
Treatises
Restatement (3d), Property (Mortgages) § 5.4(a) (1997) ………………………………… 44
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Other Authorities
American Community Survey, U.S. Census Bureau (2005). …………………………… 21
Black’s Law Dictionary 727 (6th ed. abr.) ……………………………………………………. 17
Consumer Protection: Federal and State Agencies in Combating Predatory
Lending, United States General Accounting Office, Report to the Chairman and
Ranking Minority Member, Special Committee on Aging, U.S. Senate (January
2004), pp. 99-102……………………………………………………………………………………. 20
Curbing Predatory Home Mortgage Lending, U.S. Dept. of Housing and Urban
Development and U.S. Dept. of the Treasury, 47 (2000), available at
http://www.huduser.org/publications/hsgfin/curbing.html ………………… 19, 32, 41
Housing Characteristics: 2000 (US Census Bureau 10/01)……………………………… 19
Informal Op. New York State Att’y Gen 2001-2 (April 5, 2001);………………… 8, 13
Inside B&C Lending at 2 (February 3, 2006)………………………………………………… 13
Pennsylvania Department of Banking, Losing the American Dream: A Report on
Residential Mortgage Foreclosures and Abusive Lending Practices in
Pennsylvania (2005). ………………………………………………………………………………. 23
Press Release, Office of Attorney General, N.J. Div. of Criminal Justice Targets
financial crime (Nov. 14, 2004),
http://nj.gov/lps/newsreleases04/pr20041117b.html……………………………………. 25
Press Release, Sen. Mikulski Formed Task Force and Secured Federal Assistance
to Address Flipping Problem (Oct. 9, 2003) ………………………………………………. 25
U.S. Census 2000………………………………………………………………………………………. 21
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INTERESTS OF AMICI CURIAE
Amici are non-profit legal services and public interest organizations who
have special expertise in defending foreclosures and in documenting how the
mortgage market works. Amici South Brooklyn Legal Services, Jacksonville Area
Legal Aid, Inc., Empire Justice Center, Legal Services for the Elderly, Queens
Legal Aid, Legal Aid Bureau of Buffalo, Legal Services of New York City–Staten
Island, Fair Housing Justice Center of HELP USA, and AARP’s Foundation
Litigation and Legal Counsel for the Elderly provide free legal representation to
low-income individuals and families who are victims of abusive mortgage lending
and servicing practices, and who are at risk of foreclosure. Amici Center for
Responsible Lending, National Consumer Law Center, National Association of
Consumer Advocates, and Neighborhood Economic Development Advocacy
Project are non-profit research and policy organizations dedicated to exposing and
eliminating abusive practices in the mortgage market. AARP advocates on behalf
of consumers in the mortgage marketplace and through its Public Policy Institute
conducts research on a wide variety of issues affecting older persons, including
subprime mortgage lending and mortgage broker practices.
Collectively, amici represent or counsel thousands of low to moderate
income homeowners each year. Amici prevent foreclosures through defense of
foreclosure actions in court; negotiating with foreclosing lenders to address
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servicing abuses that inflate mortgage balances and to modify mortgages to give
homeowners a fresh start; filing administrative claims with city, state, and federal
agencies; conducting community outreach and education to address predatory
lending and abusive servicing; and working on various policy issues to protect
consumers and prevent abusive mortgage lending and servicing practices.
The Mortgage Electronic Registration Systems, Inc. (“MERS”) has a
substantial and detrimental impact on amici as it curtails their ability to conduct
research and advocacy and impairs the rights of their homeowner clients. In
particular, MERS’ failure to conform to New York law significantly undermines
the public interest in preserving the free public database created by land and court
records and imposes substantial harms on amici’s homeowner clients. Therefore
amici urge this court to reverse the decision below and to find in favor of
Respondents-Appellants.
PRELIMINARY STATEMENT
Through their extensive experience representing individual homeowners and
closely studying both the national and local mortgage markets, amici have learned
first-hand the detrimental effect of MERS’ electronic registration system on
homeowners, and its destructive impact on the public land records that serve the
public interest in a variety of critical ways. Although this case turns on a question
of New York law, amici and the homeowners they represent nationwide have
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experienced the same obstacles, confusion, and frustration that are created by the
MERS system in New York State.
The MERS system harms homeowners and undermines the public interest
by concealing information that is essential both to the maintenance of accurate
public land and court records, and to individual homeowners, particularly those
who seek redress for predatory mortgages or face foreclosure. Three issues
highlight the importance of these concerns to homeowners and to the public
interest. First, because MERS obfuscates the true owner of the note, MERS
creates significant and detrimental confusion among borrowers and homeowners,
their advocates, and the courts. Second, MERS frustrates established public
policy, which dictates that title information must be publicly available, thus
causing harm to state and local governments, advocacy groups, and academic
researchers who routinely rely on public database information to inform legislative
decision-making, to support law enforcement, and to advance policy solutions to a
wide variety of housing and mortgage issues. Third, MERS’ routine practice of
improperly commencing foreclosure actions solely in its name, even though it is
not the true owner of the note, flaunts courts rules and raises significant standing
concerns. Accordingly, amici urge this Court to reverse the decision of the court
below and find in favor of Respondents-Appellants Edward P. Romaine and the
County of Suffolk, and against Petitioners-Respondents MERS.
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ARGUMENT
I. The MERS System Was Designed Without Regard to Consumers’
Rights
MERS is the brainchild of the mortgage industry, designed to facilitate the
transfer of mortgages on the secondary mortgage market and save lenders the cost
of filing assignments. See, e.g., Br. for Petitioners-Respondents MERS
(hereinafter “MERS Br.”) at 6-7 (listing the founding members of MERS as, inter
alia, Mortgage Bankers Association of America, the Federal National Mortgage
Association…and others within the real estate finance industry); Record on Appeal
(hereinafter “R.__”) at 604-6. (MERS is in an “administrative capacity to serve the
sole purpose of appearing in the county land records”). MERS is not a mortgage
lender; nor does it ever own or have any beneficial interest in the note or mortgage.
See, e.g., Merscorp, Inc. v. Romaine, No. 9688/01, slip op. at 2 n.3 (N.Y. Sup. Ct.,
Suffolk Co. May 12, 2004); Informal Op. New York State Att’y Gen 2001-2 (April
5, 2001), 2001 N.Y. AG LEXIS 2; R. at 727-28. Nevertheless, MERS substitutes
its name on the public records for the name of the actual owners of mortgage loans.
In so doing, MERS is rapidly undermining the accuracy of the public land and
court records databases, establishing in their place a proprietary national electronic
registry system that “tracks” beneficial ownership and servicing rights and whose
information is inaccessible to the public. Yet the design of MERS’ registration
system and foreclosure procedures considered neither the public’s interest, nor the
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rights and interests of consumers. See, e.g., Phyllis K. Slesinger and Daniel
McLaughlin, Mortgage Electronic Registration System, 31 IDAHO L. REV. 805,
811, 814-15 (1995) (MERS initially sought input from industry representatives; no
input sought from consumers).
Not surprisingly, MERS operates in derogation of the rights and interests of
consumers and the public interest. MERS claims that the MERS system is
beneficial to consumers because the “cost savings are substantial,” the flow of
funds are sped up, and the consumer can determine which company services her
mortgage by calling a toll-free number. MERS Br. at 9-11, 37-38. However, these
arguments are unsupported and disregard the significant obstacles and confusion
that MERS creates. As described below, the detrimental effects of MERS—the
hiding of the true note and mortgage holder and the insulation of the holder from
potential liability in situations involving predatory loans— substantially outweigh
any purported benefit to consumers of the MERS system. Indeed, MERS is
fundamentally unfair to homeowners who are trapped in the system because it
transmutes public mortgage loan ownership information, required to be recorded in
the public databases, into secret and proprietary information, inaccessible to both
the borrower and the public.
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II. MERS’ Claims That the MERS System Is Beneficial to Consumers Are
Unsupported.
MERS has not ushered in a beneficent new regime in the mortgage lending
industry, nor does it impart cost savings or greater access to information to
homeowners. See MERS Br. at 11, 37, 39. In fact, the opposite is true. The only
beneficiaries of the MERS system are MERS and its member lenders and servicers.
The losers are millions of homeowners who are unwittingly drawn into MERS’
virtual black hole of information, and the public at large. Far from filling an
information void, the MERS system creates an information drain, removing the
true note holder’s identity from the public records and substituting MERS in its
stead. Significantly, while systematically eliminating any public record of
mortgage loan ownership and assignments, MERS has not even bothered to
maintain a private database of intermediate assignments—tracking only the
identity of the loan servicer. R. at 635-637. As a result, the judges and court staff
who are forced to deal with the confusion spawned by the increasing number of
land records and foreclosures filed in the name of MERS can also be counted
among the casualties of the MERS system.
Any cost savings resulting from the MERS system benefit its member
lenders, who are freed from the costs of filing mortgage assignments, not
homeowners or the public. These cost savings are touted as MERS’ core purpose:
“This [MERS process] eliminates the need to record an assignment to your
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MERS® Ready buyer, saving on average $22 per loan.” (“What is MERS?”
promotional materials) and “Save at least $22 on each loan by eliminating
assignments.” (MERS benefit materials). See also
http://www.mersinc.com/why_mers (last visited September 20, 2006).
Moreover, MERS’ assertion that homeowners are the beneficiaries of the
MERS system simply cannot be reconciled with the practices espoused by MERS
or those of its members. MERS Br. at 11, 38. While MERS claims that its
member lenders pass on savings to their borrowers, MERS Br. at 11, there is no
indication this is actually happening; nor is it any part of the MERS sales pitch to
lenders. To the contrary, thanks to MERS, an additional fee frequently appears on
the HUD-1 Settlement Statement: a MERS fee of $3.95. See R. at 48. MERS
encourages its members to charge this additional fee:
Q. Can I pass the MERS registration fee on to the borrower?
A. YES. On conventional loans you may be able to pass this fee
on to the borrower, but you should check with your legal
advisors to ensure that you are in compliance with federal and
state laws. On government loans, please check with your local
field office for availability and approval.
(MERS promotional FAQ).
There is no record evidence that any costs savings are passed on to
borrowers. The opposite is true. The $3.95 MERS assignment fee is built into the
standard fees charged by lenders at closing and variously denominated as
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“origination fee,” “underwriting fee,” “processing fee,” “administration fee,”
“funding fee,” etc. on the HUD-1 settlement sheet. Under the MERS system, it is
MERS and its members who are gaining financially, clerk’s offices which are
deprived of valuable operating funds, and consumers who are losing ground.
MERS erroneously touts its system as providing greater access to
information through the availability of a toll-free number to identify the
homeowner’s loan servicer. See R. at 48; MERS Br. at 37, 39. MERS’ repeated
emphasis, MERS Br. at 9-10, 39, on this issue is a red herring. The identity of the
servicer is well known to the homeowner, who receives the servicer’s monthly bills
and makes mortgage payments to the servicer. In fact, the identity of the servicer
is perhaps the only information homeowners know about their loan once MERS is
involved. MERS does not offer homeowners a toll-free number to learn who
actually owns their note and mortgage; indeed MERS does not track that
information itself. Yet this is the key piece of information that homeowners no
longer possess and are unable to access because MERS has eliminated it from the
public records.
III. Homeowners Have a Right to Know Who Owns Their Loans.
MERS’ existence is justified by a slender reed of an opinion letter of its
counsel, a letter which cavalierly asserts that “there is no reason why, under a
mortgage, the entity holding or owning the note may not keep the fact of its
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ownership confidential. . . The public has no significant interest in learning the true
identity of the holder of the note.” R. at 731. This self-serving opinion is utterly
incorrect, and dangerously ignores consumer rights and the strong public interest in
maintaining an accurate and complete public recordation system.
The 2001 Opinion of the Attorney General of the State of New York is a
clear refutation of MERS’ foundational principle that MERS’ elimination of public
records does not violate public policy:
Designating MERS as the mortgagee in the mortgagor-mortgagee
indices would not satisfy the intent of Real Property Law’s recording
provisions to inform the public about the existence of encumbrances,
and to establish a public record containing identifying information as
to those encumbrances. If MERS ever went out of business, for
example, it would be virtually impossible for someone relying on the
public record to ascertain the identity of the actual mortgagee if only
MERS had been designated as the mortgagee of record.
2001 N.Y. Op. Attorney General 1010; 2001 N.Y. AG LEXIS 2.
Moreover, the importance of maintaining public records that accurately
identify the mortgage holder has assumed greater importance in recent years, as
mortgages are increasingly transferred into the secondary market and are only
rarely retained by the originating mortgage lender. A booming secondary
mortgage market has emerged with the issuance of mortgage-backed securities
which are sold to Wall Street firms in pools and securitized. These securitized
mortgages have skyrocketed from $11 billion in 1994 to more than $500 billion in
2005. Inside B&C Lending at 2 (February 3, 2006).
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What this securitization boom means for consumers is that the entity that
owns the note and mortgage is likely to change several times over the life of the
loan. Before MERS, the easiest way to determine the current owner was to check
the public records for the last assignment of the mortgage.1 In the MERS system,
however, assignments are never filed except when the mortgage is initially
assigned to MERS or assigned to a non-MERS member mortgagee. As a result,
when MERS is the nominee for a mortgage, the homeowner cannot determine who
owns her note by checking the public records, nor can she obtain this information
from MERS. The MERS system thus actively subverts the public policy of
maintaining a transparent, public title history of real property.
It is essential for consumers to be able to identify the owner of their loan,
since the owner alone retains the power to make certain decisions about the loan,
particularly when borrowers fall behind. Knowing the identity of the servicer is
rarely sufficient for consumers who are having problems with their loans, as
servicers often lack the necessary authority to enter into loan modifications with
borrowers or restructure overdue payments. Borrowers may also benefit from
direct contact with owners when servicers’ interests in collecting late fees and
collection fees run counter to borrowers’ interests in bringing their loans current.
1 The recording of an assignment is beneficial to the borrower, and the public, by openly stating
the current owner of the mortgage.
11
Thus, the homeowner’s ability to locate the owner of the note and mortgage is
important both to informal resolution of payment delinquencies and when more
serious problems arise.
The homeowner’s inability to determine quickly who owns the note and
mortgage also prevents the exercise of important rights under federal and state law
and makes it difficult to adequately defend foreclosure proceedings. Federal law
creates a right of rescission whenever a homeowner refinances a home, or
otherwise enters into a nonpurchase money mortgage. If the lender fails to comply
fully with the dictates of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., the
borrower is entitled to exercise the right of rescission for an extended three year
period. 15 U.S.C. § 1635(f). When exercised, this right is extremely powerful: it
cancels the lender’s security interest or mortgage, credits all payments entirely to
principal, relieves the homeowner of the obligation to repay any closing costs or
fees financed, and provides the possibility of recovering statutory and
compensatory damages. 12 C.F.R. § 226.23. Of critical importance in the context
of this proceeding, the right to rescind may be asserted against assignees of the
obligation, i.e. the note holder itself; in fact, rescission is one of the few tools
available to homeowners to stop a foreclosure. 15 U.S.C. § 1641(c).
Unlike note holders, servicers are not liable for rescission, 15 U.S.C.
§1641(f)(1), and some courts have refused to honor a homeowner’s rescission even
12
where the servicer’s identity is the only information available to the homeowner.
See Miguel v. Country Funding Corp., 309 F.3d 1161 (9th Cir. 2002). While the
Federal Reserve Board subsequently amended its Official Staff Commentary to
clarify that service upon an agent of the holder, as defined by state law, is
sufficient, where the creditor does not designate a person to receive the notice of
rescission, 69 Fed. Reg. 16,769 (Mar. 31, 2004), many ambiguities remain and
courts have continued to question the adequacy of notice unless given to the holder
of the loan. See, e.g., Roberts v. WMC Mortg. Corp., 173 Fed. Appx. 575 (9th Cir.
2006). Prudent practice makes it essential for a rescinding homeowner to identify
and notify the holder.
Identifying the holder of the note is dependent upon accurate land records, as
servicers incur no liability for withholding this information. While the Truth-in-
Lending Act requires servicers to tell borrowers, upon request, who the holder is,
15 U.S.C. §1641(f)(2), there is no requirement that the response be timely and
there is no remedy for its violation. The experience of amici is that servicers rarely,
if ever, provide this information.
Service upon MERS is likewise ineffective, as MERS is neither the holder
nor the servicer. See Mortg. Elec. Registration Sys. v. Estrella, 390 F.3d 522 (7th
Cir. 2004) (MERS is a nominee on the mortgage only); Mortg. Elec. Registration
Sys. v. Neb. Dep’t of Banking & Fin., 704 N.W.2d 784 (Neb. 2005) (MERS argues
13
that it is only nominee of mortgages). As “nominee,” MERS is not an agent of the
holder for purposes of receipt of rescission notices. Cf., e.g., Black’s Law
Dictionary 727 (6th ed. abr.) (defining nominee as “one designated to act for
another as his representative in a rather limited sense”); Mortg. Elec. Registration
Sys. v. Neb. Dep’t of Banking & Fin., 704 N.W.2d 784 (Neb. 2005) (MERS argues
that it is only nominee of mortgages and is contractually prohibited from
exercising any rights to the mortgages). Moreover, the history of litigation
involving MERS confirms that it would be foolish to rely on notice to MERS as
notice to the holder of the mortgage. See, e.g., Freedom Mortg. Corp. v. Burnham
Mortg., Inc., 2006 WL 695467 (N.D. Ill., Mar. 13, 2006) (lender arguing that it is
not bound by foreclosure bids of MERS as its nominee); Countrywide Home Loans
v. Hannaford, 2004 WL 1836744 (Ohio Ct. App. Aug. 18, 2004).
This leaves a homeowner in a trick box. In order to exercise an important
right, the homeowner must provide notice to the holder of the note or its agent.
MERS does not serve as the holder, nor does it serve as the holder’s agent for this
purpose; it does not believe it is required to comply with the Truth-in-Lending Act
at all, according to a memo prepared by MERS’ counsel (R. at 745-6); and it
refuses or is incapable of providing the homeowner with the name or address of the
holder of the note. Surely this is not an unexpected consequence of the MERS
system. As architect of a system that, by design, withholds information from
14
homeowners that is key to their exercising a critical federal right, MERS has and
continues to infringe on homeowners’ rights of rescission.
MERS’ obfuscation of the true holder of the note further infringes on
homeowners’ rights to rescind abusive, high-cost home loans pursuant to New
York State’s Banking Law 6-l, which was enacted in October 2002 to counter
predatory lending abuses in the mortgage market. Many other state and common
law rights of borrowers are also imperiled by the MERS system. In foreclosure
proceedings, assignee note holders often claim that they are a holder in due course
when a consumer raises certain defenses such as common law fraud or deceptive
acts and practices (codified in New York State as General Business Law § 349).
Before MERS, consumers could easily access the complete chain of title through
the public records by identifying each assignment of the loan. Under the MERS
system, all of this information is lost to the homeowner, putting homeowners at a
significant and unwarranted disadvantage in defending foreclosures.
IV. The MERS System Causes Significant Confusion Among Borrowers,
and Has a Particularly Detrimental Impact on the Elderly and Other
Vulnerable Borrowers Frequently Victimized by Predatory Lenders.
In the last decade scholars and government regulatory agencies examining
mortgage lending practices, including predatory lending, have spotlighted the
importance of creating transparency in the mortgage marketplace through
improved disclosures to borrowers and enhanced consumer literacy. See Curbing
15
Predatory Home Mortgage Lending, U.S. Dept. of Housing and Urban
Development and U.S. Dept. of the Treasury, 47 (2000), available at
http://www.huduser.org/publications/hsgfin/curbing.html (“HUD-Treasury
Report”). The MERS system flies in the face of this goal—obfuscating the
mortgage process and violating consumers’ right to know. The confusion
engendered by MERS has a particularly detrimental impact on the most vulnerable
homeowners.
According to the 2000 Census, 12.9 percent of New York State’s population
is comprised of people who are 65 years and older. Of these elderly state residents,
over 66% are homeowners, while 42.8% of seniors residing in New York City own
their homes.2 These numbers suggest that a large number of the consumers
affected by the MERS system are older New Yorkers.
Declining vision, hearing, mobility and cognitive skills make it more
difficult for older borrowers to extract the critical information they need from
federally mandated disclosure documents. See Alan M. White and Cathy Lesser
Mansfield, Literacy and Contract, 13 STAN. L & POL’Y REV 233. Like many
consumers, older adults often can not understand mortgage documents, as they are
written in extremely complex and technical language. MERS amplifies this
2 See Housing Characteristics: 2000 (US Census Bureau 10/01).
16
problem by intentionally layering new legal terms, and inserting a new and foreign
legal entity, into already complicated consumer contracts and transactions.
As a result, many of amici’s clients are unaware of MERS’ involvement and
are thoroughly confused when MERS begins to act on behalf of their servicer or
mortgagee. The confusion and obstacles that are created by this MERS system are
significant, particularly for homeowners whose predatory loans put them at an
increased risk of default and foreclosure. For example, one of SBLS’ elderly
clients, in default on her mortgage, was receiving a tremendous number of
solicitations from “foreclosure rescue” companies and mortgage brokers and
lenders which promised to save her from foreclosure. When she received the
foreclosure summons and complaint naming MERS as the plaintiff, she
disregarded it because she thought that MERS was simply another company trying
to scare her. As a result of her confusion over MERS, the client nearly lost her
home.
Government agencies and consumer organizations consistently report that
older citizens are disproportionately victimized by predatory mortgage brokers and
lenders. See Consumer Protection: Federal and State Agencies in Combating
Predatory Lending, United States General Accounting Office, Report to the
Chairman and Ranking Minority Member, Special Committee on Aging, U.S.
Senate (January 2004), pp. 99-102. Older homeowners are more likely to have
17
substantial equity in their homes, making them attractive targets. Their fixed
incomes (over 20% of elderly city residents live below the poverty level) and agerelated
mental and physical impairments, affecting nearly half of city residents,
make them more vulnerable to mortgage abuse. 3 In addition, many older New
Yorkers living in inner-city homes lack access to traditional lending institutions,
placing them at greater risk of becoming victims of high cost, predatory, subprime
lenders. See Associates Home Equity v. Troup, 343 N.J. Super. 254 (App. Div.
2001).4
Subprime lending has proven to offer opportunities for unscrupulous – or
predatory-lenders to take advantage of borrowers by charging excessive
interest rates and fees and using mortgage proceeds to pay inflated costs for
home repairs or insurance products. The most common victims of these
predatory lending practices have been found to include the elderly,
minorities, and low income households.
Kimberly Burnett, Chris Herbert, et al., Subprime Originations and Foreclosures
in New York State: A Case Study of Nassau, Suffolk, and Westchester Counties
(2002) at ii.
By creating an additional, confusing overlay to the predatory loan
transaction, MERS’ involvement serves to compound the very significant problems
3 See U.S. Census 2000; see also American Community Survey, U.S. Census Bureau (2005).
4 After finding that the lender had targeted a 74 year old African American home owner in
Newark, the Court in Troup held that the lender “participated in the targeting of inner-city
borrowers who lack access to traditional lending institutions, charged them a discriminatory
interest rate, and imposed unreasonable terms.” Associates Home Equity, 343 N.J. Super.254
(App. Div. 2001).
18
that already exist for homeowners with predatory loans. MERS shields these
unscrupulous lenders, hiding the identities of assignees and muddying records
which are vital to victims seeking immediate redress.
V. The Public Has a Significant and Enduring Interest in Preserving and
Protecting the Free Public Databases Created by the Land and Court
Records of This Nation.
MERS . . . represents the future of foreclosure: a brave new world of
anonymity and unaccountability . . . The ostensible purpose is to save
companies the county filing fees they often must pay when they buy
mortgages or transfer servicing. An added benefit: if a foreclosure
filing becomes necessary that filing, too, can be in MERS’ name.
That makes it harder for journalists, community groups and
researchers to determine whose mortgages are actually ending in
foreclosure. If MERS has its way, it will become increasingly
difficult to tell whose mortgages are failing.
Richard Lord, AMERICAN NIGHTMARE: PREDATORY LENDING AND THE
FORECLOSURE OF THE AMERICAN DREAM 157 (Common Courage Press 2005).
A. Public land and court data records facilitate research
investigating the root causes of a variety of mortgage and other
land related problems.
The public land and court records have served as a vitally important, free
and accessible source of data that have been relied upon by broad constituencies,
including government, academics, non-profit advocacy organizations, businesses
and private individuals throughout the past century. These records have assisted
the legislative branches of government in formulating policy and providing a
legislative response to crises, including redressing abusive mortgage lending
19
practices. 5 See Zach Schiller, Foreclosure Growth in Ohio (2006), available at
available at: http://www.policymattersohio.org/pdf/foreclosure_growth_
ohio_2006 (supporting recently enacted Amended Substitute Senate Bill No. 185,
126th Cong., which expanded the Ohio Consumer Sales Practices Act to cover
mortgage lending; 6 TRF, Mortgage Foreclosure Filings in Pennsylvania (2005),
available at http://www.trfund.com/resource/downloads/policypubs/Mortgage-
Foreclosure-Filings.pdf (Study resulting from Pennsylvania state legislative
request to gather information and analyze foreclosures); 7 Burnett et.al, Subprime
5 The studies listed represent only a small sampling of the numerous studies and reports reliant
on public land and court records data that have influenced legislative decision-making. See e.g.,
The Reinvestment Fund (“TRF”), Mortgage Foreclosure Filings in Delaware (2006),
http://www.trfund.com/resource/downloads/policypubs/Delaware_Foreclosure.pdf (Study
commissioned by the Office of the State Bank Commissioner to analyze foreclosure activity in
Delaware); TRF, A Study of Mortgage Foreclosures in Monroe County and The
Commonwealth’s Response (2004), http://www.banking.state.pa.us/banking/cwp/
view.asp?a=1354&q=547305 (Study commissioned by the Pennsylvania Department of Banking
and the Housing Finance Agency to investigate foreclosure trends in Monroe County); Lynne
Dearborn, Mortgage Foreclosures and Predatory Lending in St. Clair County, Illinois 1996-
2000 (2003) (U.S. Department of Housing and Urban Development (“HUD”) funded study of
loan terms and foreclosure trends commissioned by St. Clair County); Lorain County
Reinvestment Fund, The Expanding Role of Subprime Lending in Ohio’s Burgeoning
Foreclosure Problem: A Three County Study of a Statewide Problem, (2002), http://cohhio.org/
projects/ocrp/SubprimeLendingReport.pdf (Study of foreclosure trends in three Ohio counties).
6 See also Zach Schiller and Jeremy Iskin, Foreclosure Growth in Ohio: A Brief Update (2005),
http://www.policymattersohio.org/pdf/Foreclosure_Growth_Ohio_2005.pdf; Zach Schiller,
Whitney Meredith, & Pam Rosado, Home Insecurity 2004: Foreclosure Growth in Ohio,
available at http://www.policymattersohio.org/pdf/Home_Insecurity_2004.pdf.
7See also Pennsylvania Department of Banking, Losing the American Dream: A Report on
Residential Mortgage Foreclosures and Abusive Lending Practices in Pennsylvania (2005),
available at http://www.banking.state.pa.us/banking/lib/banking/about_dob/special%20
initiatives/mortgage%20forecloser/statewide%20foreclosure%20report.pdf. This report was
presented to the Pennsylvania House of Representatives by the Secretary of the Pennsylvania
20
Originations and Foreclosures in New York State (Study supported passage of
New York predatory lending law, N.Y. Banking Law § 6-1).8
The land and court records data have been utilized by the executive branches
of government to inform their regulatory activities related to land ownership, see
e.g. Ramon Garcia, Residential Foreclosures in the City of Buffalo, 1990-2000
(2003)9 (New York Federal Reserve Bank investigation),10 and are a source of
information for law enforcement agencies seeking to prosecute offenders for
mortgage fraud, property flipping and other criminal mortgage-related offenses.11
See e.g. People v. Larman, No. 06253-2005 (Kings County Supreme Ct. Sept. 20,
2006) (Indictment for fraudulent mortgage transactions); People v. Sandella, No.
02899-2006 (Kings County Supreme. Ct. Sept. 27, 2006) (indictments for multi-
Department of Banking and includes information from several sources, including TRF, Mortgage
Foreclosures in Pennsylvania.
8 Executive Summary available at: http://www.abtassociates.com/reports/ESSuburban_
NY_Foreclosures_study_final.pdf (Public records and HMDA data demonstrated that
subprime foreclosures impacted both urban and suburban communities)
9 This report is available at: http://www.newyorkfed.org/aboutthefed/
buffalo/foreclosure_study.pdf (10 year study of foreclosure trends in Buffalo)
10 The following are a small sampling of executive branch studies relying on data in the public
domain. See e.g., Bunce, Harold, Gruenstein, Debbie et al., Subprime Lending: The Smoking Gun
of Predatory Lending? (HUD 2001), http://www.huduser.org/Publications/ pdf/brd/12Bunce.pdf;
Dearborn, Mortgage Foreclosures in St. Clair.
11 For a sampling of New York criminal indictments relying on land records data, see People v.
Albertina, 09141-2005 (Kings County Supreme Ct. Sept. 28, 2006) (Attorney General indictment
for a multi-million dollar scheme to sell houses with fake deeds); People v. Constant, No.
01843A-2006 (Suffolk Supreme Ct. Oct. 12, 2006)(Suffolk County grand jury indictment of six
for roles in real estate scam); Altegra Credit Co. v. Tin Chu, et al., No. 04326-2004 (Kings
County Supreme Ct. March 25, 2004)
21
million dollar residential property flipping scheme).12 These data also inform local
governments about the cost and impact of abusive lending practices on both their
constituents and the public purse. See T. Nagazumi & D. Rose, Preying on
Neighborhoods: Subprime mortgage lending and Chicagoland foreclosures, 1993-
1998 (Sept. 21, 1999) 13 (NTIC study investigated the effects of subprime mortgage
lending on foreclosures in Chicago); Kathleen C. Engel, Do Cities Have Standing?
Redressing the Externalities of Predatory Lending, 38 Conn. L. Rev. 355 (2006).
12 Criminal property flipping is rampant throughout the country. For a sampling of this problem
see e.g. Press Release, Office of Attorney General, N.J. Div. of Criminal Justice Targets
financial crime (Nov. 14, 2004), http://nj.gov/lps/newsreleases04/pr20041117b.html (Indictment
of North Jersey businessman for mortgage fraud scheme that netted more than $677,000 in
fraudulent loans); Lessons learned from the laboratory (Community Law Center (CLC) 2002)(A
report by the CLC – Baltimore City flipping and Predatory Lending Task Force (47 individuals
were indicted, pled guilty, or were convicted in federal court for property flipping and mortgage
fraud)), http://www.communitylaw.org/Executive%20 Summary.htm; see also Press Release,
Sen. Mikulski Formed Task Force and Secured Federal Assistance to Address Flipping Problem
(Oct. 9, 2003), http://mikulski.senate.gov/record.cfm?id=213248 (70 people convicted of
property flipping in Baltimore); Press Release, FBI, U.S. Attorney’s Office, Ohio, (May 9,
2006); Press Release, U.S. Attorney’s Office, S.D. Mississippi (Feb.16, 2006); Press Release,
Office of the Attorney General, Florida (June 25, 2004)
13 This report is available at: http://www.ntic-us.org/preying/preying.pdf ; For a sampling of
other relevant studies, see D. Rose, Chicago Foreclosure Update 2006 (July), http:// http://www.nticus.
org/documents/ChicagoForeclosureUpdate2006.pdf (NTIC study analyzes foreclosure trends
in Chicago); D. Rose, Chicago Foreclosure Update 2005, http://www.nticus.
org/currentevents/press/pdf/chicagoforeclosure_update.pdf; William C. Apgar & Mark Duda.
Collateral Damage: The Municipal Impact of Today’s Mortgage Foreclosure Boom 1996-2000
(May 11, 2005), http://
http://www.nw.org/Network/neighborworksprogs/foreclosuresolutions/documents/Apgar-
DudaStudyFinal.pdf (Documents the financial costs of foreclosure to municipalities); Apgar, The
Municipal Cost of Foreclosures: A Chicago Case Study (Feb. 27, 2005), http://
http://www.hpfonline.org/PDF/Apgar-Duda_Study_Full_Version.pdf (Also documents indirect costs
that result from the domino effect that foreclosures have on communities).
22
Non-profit groups and academics rely upon data in the public domain to
illustrate trends, spotlight the impact of various mortgage practices on minority and
low income communities and uncover abusive practices that injure their
constituencies. They use this information to advocate for policy initiatives that
benefit the public interest. See e.g. Nagazumi, Chicago Update 2006; Apgar and
Duda, Collateral Damage; Apgar, Municipal Cost of Foreclosures; Lindley
Higgins, Effective Community-Based Strategies for Preventing Foreclosures,1993-
2004 (2005), 14 (A 2005 analysis of the factors that led to foreclosure generated
proposals for foreclosure prevention programs)15; Neighborhood Housing Services
(NHS) of Chicago, Preserving Homeownership: Community-Development
Implications of the New Mortgage Market (2004) (Study of foreclosures from
1998-2003 proposes foreclosure prevention initiatives for community based
organizations working cooperatively with private industry and federal, state, and
local governments).16
14 This report is available at: http://www.nw.org/network/pubs/studies/documents
/foreclosureReport092905.pdf.
15 See also Nagazumi, Preying on Neighborhoods; Richard Stock, Center for Business and
Economic Research (CBER), Predation in the Sub-Prime Lending Market: Montgomery County
Vol. I., 1994-2001 (2001), http://www.mvfairhousing.com/cber/pdf/Executive%20summary.PDF
(Study examines predatory lending in Montgomery County, Ohio).
16 This report is available at: http://www.nw.org/network/pubs/studies/documents/
preservingHomeownershipRpt2004_000.pdf. See also Nagazumi, Preying on Neighborhoods at
36-37 (urging legislature to pass Illinois legislation to end predatory subprime lending and to
disclose predatory pricing and practices to Illinois regulators and the public); Higgins,
Community-Based Strategies at i. (Objective is to increase capacity of local community based
23
Businesses utilize the public land and court records data as the providers of
research services that convert public information into customized databases. See
e.g. NYForeclosures.com; Atlanta Foreclosure Report;17 Boston Foreclosure
Report and Foreclosure Report of Chicago 18). These data collection businesses
serve a wide variety of business customers, including mortgage brokers seeking
leads, bankruptcy attorneys, and real estate agents, as well as government and nonprofit
research entities. See id.19
B. The public databases have played an important role in facilitating
understanding and government response to the recent
“foreclosure boom.”
Land and court records data have become a particularly important public
resource over the past decade, as the nation has experienced what some have
characterized as a “foreclosure boom.” See generally Apgar and Duda, Collateral
organizations to revitalize communities); Apgar & Duda, Collateral Damage at 16 (Report
identifies foreclosure avoidance strategies for municipalities).
17 See http://www.equitydepot.net.
18 See http://www.chicagoforeclosurereport.com.
19 Non-profit and government researchers that have relied on these data collection businesses to
do the primary research legwork that provides them with land and court records data to support
their analyses include, the Federal Reserve Bank of New York’s Buffalo Branch, see Ramon
Garcia, Residential Foreclosures in the City of Buffalo, 1990-2000 (2003); see Bunce, Subprime
Lending; Kimberly Burnett, Bulbul Kaul, & Chris Herbert, Analysis of Property Turnover
Patterns in Atlanta, Baltimore, Cleveland and Philadelphia (2004),
http://www.abtassociates.com/reports/analysis_property_turnover_patterns.pdf; Debbie
Gruenstein & Christopher Herbert, Analyzing Trends in Subprime Originations and
Foreclosures: A Case Study of the Boston Metro Area, 1995-1999 (2000),
http://www.abtassociates.com/reports/20006470781991.pdf; Nagazumi, Preying on
Neighborhoods; Rose, Chicago Foreclosure Update 2006.
24
Damage; see also Daniel Immergluck & Geoff Smith, The External Costs of
Foreclosure: The Impact of Single-Family Mortgage Foreclosures on Property
Values, 17 Housing Pol’y Debate, Issue 1 (2006).20 As subprime mortgage lending
escalated from $35 billion in 1994 to $140 billion in 200021 to more than $600
billion in 2005, foreclosure rates jumped by an alarming 335.6%. See Robert
Avery, Kenneth Brevoort, Glenn Canner, Higher-Priced Home Lending and the
2005 HMDA Data at A125 (Sept. 8, 2006).22 These skyrocketing subprime
foreclosures disproportionately impacted low-income and minority communities.
Id. at 63.
Struggling to understand the origins of this foreclosure crisis, government
and researchers have turned to the public data. See supra Schiller; TRF, Delaware;
TRF, Pennsylvania; Dearborn, Mortgage Foreclosures in St. Clair; Paul Bellamy,
The Expanding Role of Subprime Lending in Ohio’s Burgeoning Foreclosure
20 This report is available at: http://www.fanniemaefoundation.org/programs/hpd/pdf/
hpd_1701_immergluck.pdf#search=%22%22Immergluck%22%20and%20%22Geoff%22%22
21 See Neal Walters & Sharon Hermanson, Subprime Mortgage Lending and Older Borrowers
(AARP Public Policy Institute), Data Digest Number 74 (2001). Data Digest available at:
http://assets.aarp.org/rgcenter/consume/dd74_finance.pdf
22 This report is available at:
http://www.federalreserve.gov/pubs/bulletin/2006/hmda/bull06hmda.pdf; “HMDA” refers to the
Home Mortgage Disclosure Act, 12 USC § 2801 et. seq.; see also Margot Saunders and Alys
Cohen, Federal Regulation of Consumer Credit: The Cause or the Cure for Predatory Lending?
at 11 (Joint Center for Housing Studies 2004),
http://www.jchs.harvard.edu/publications/finance/babc/babc_04-21.pdf
25
Problem: A Three County Study of a Statewide Problem, 1994-2001 (2002).23 This
effort to learn the root causes of the “foreclosure boom,” to understand whether
particular regions or demographic groups are most affected by rising foreclosures,
to evaluate the impact of these foreclosures on the surrounding community, and to
address and seek to remedy any abuses that enabled this crisis to develop, has
spawned a virtual explosion of research studies. See e.g. TRF, Delaware; Rose,
Chicago (2006); Engel, Do Cities Have Standing?; Rose, Chicago Foreclosure
Update 2006; Rose, Chicago Foreclosure Update 2005 (Updating foreclosure
activity in Chicago); Apgar & Duda, Collateral Damage; Apgar, Municipal Cost of
Foreclosures; TRF, Pennsylvania; TRF, Monroe County; Nagazumi, Preying on
Neighborhoods; NHS of Chicago, Preserving Homeownership; Dearborn,
Mortgage Foreclosures in St. Clair; Paul Bellamy, The Expanding Role; Burnett,
Subprime Originations; Garcia, Buffalo supra note 10; Bunce, Subprime Lending;
Nagazumi, Preying on Neighborhoods.
Standing alone, land and court records data serve as a valuable resource to
confirm the existence of the foreclosure boom, identify any key participants in the
foreclosure process, and identify those geographic areas hardest hit. See supra,
Dearborn, Mortgage Foreclosures in St. Clair; Stock, Predation at 8; Apgar,
23 This report is available at: http://www.cohhio.org/projects/ocrp/ SubprimeLendingReport.pdf
26
Chicago at 5.24 In fact, research derived from courthouse and public land records
motivated the North Carolina legislature to become one of the first states to crack
down on predatory mortgage lending. See Habitat for Humanity Refinances,
Coalition for Responsible Lending (updated July 25, 2000) (This ground breaking
study examined refinances of affordable Habitat for Humanity mortgages into
unaffordable predatory loans); David Rice, Predatory Lending Bill Caught in
Debate, Winston-Salem Journal, April 27, 1999.
Land and court records data are even more valuable and informative when
analyzed in conjunction with several other “puzzle pieces” of publicly available
data. See e.g. Duda & Apgar, Mortgage Foreclosures in Atlanta: Patterns and
Policy Issues, 2000-2005 (2005)25; see Apgar, Collateral Damage; Rose, Chicago
Foreclosure Update 2006; Burnett, Subprime Originations. When combined with
other sources of data, such as census tract and HMDA data, land and court records
data enable researchers to layer information to develop a comprehensive picture
that identifies the leading foreclosure filers, the geographic location and racial
composition of foreclosure hotspots and the loan characteristics associated with
concentrated and quick foreclosures. See e.g. Duda, Atlanta at 15; see also
24Similarly, Mountain State Justice, a West Virginia legal services organization that represents
victims of predatory lending, has conducted an annual review of foreclosure filings in the state
since July 2001. See Report of West Virginia Foreclosures, available from Mount State Justice.
25This report is available at: http://www.nw.org/network/neighborworksprogs/
foreclosuresolutions/documents/foreclosure1205.pdf
27
Burnett, Atlanta, Baltimore, Cleveland and Philadelphia at iii; Nagazumi, Preying
on Neighborhoods at 9; Stock, Predation at 1.
In the past, the availability of detailed public information has enabled
researchers to pinpoint some of the root causes of increased foreclosures and, for
example, informed the New York State legislature in crafting a legislative response
to abusive practices associated with high cost loans. There, a New York study
which combined public records data with HMDA data to identify subprime lenders
and the distribution of subprime foreclosures demonstrated that subprime
foreclosures were prevalent in suburban as well as urban areas.26 See Burnett,
Subprime Originations. Comprehensive research similarly enabled the State of
Illinois and the City of Chicago to redress abusive lending practices and thereby
put the brakes on the foreclosure boom in Chicago. See e.g. Nagazumi, Preying on
Neighborhoods (study demonstrated that subprime foreclosures were both an urban
and suburban problem; that most non-performing loans were subprime, and
identified the top foreclosers of high interest loans); see also, subsequently enacted
Illinois predatory lending law, 815 ILCS § 137. Data from land and court records
26 The New York predatory lending law enacted April 1, 2003 can be found at N.Y.
Banking Law § 6-1, N.Y. Gen. Bus. Law § 771-a, and N.Y. Real Prop. Acts. Law § 1302.
28
has played an important role in analyzing other trends in the mortgage market,
such as identifying unfair or discriminatory lending patterns and practices.27
Unfortunately, in recent years MERS’ increasing emergence as a
placeholder for the true note and mortgage holders in land and court records
databases has corrupted these sources of data and undermined their utility as a
research source.
C. Through its penetration of the public databases MERS has caused
a dramatic deterioration in the quality and quantity of publicly
available information.
In New York city alone, MERS has rapidly replaced true owners in the city
maintained public database—ACRIS—increasing its filings from a nominal fewer
than 100 in 2000, to approximately 90,000 in 2005 and an expected 120,000 filings
in 2006.28 Since the MERS label on the public records shields the identity of the
27 Bunce, Subprime Lending; In 2001, a joint HUD and U.S. Dept. of the Treasury report found
that “[i]n predominantly black neighborhoods, subprime lending accounted for 51 percent of
refinance loans in 1998 – compared with only 9 percent in predominantly white neighborhoods.”
Curbing Predatory Home Mortgage Lending, U.S. Dept. of Housing and Urban Development
and U.S. Dept. of the Treasury, 47 (2000),
http://www.huduser.org/publications/hsgfin/curbing.html.
28 AARP accessed the New York City Department of Finance’s Automated City Register
Information System (ACRIS) website on September 12, 2006 to research the number of MERS,
MERS as nominee and Mortgage Electronic Registration System filings in all boroughs for each
of two months—March and August during the years 2000 through 2006. The results of this
search are included below.
March 2000 7; August 2000 8; March 2001 610; August 2001 126;
March 2002 414; August 2002 663; March 2003 1,277; August 2003 2,785;
March 2004 4,384; August 2004 4,697; March 2005 7,064; August 2005 8,009;
March 2006 10,619; August 2006 10,411.
29
actual participants in the mortgage and foreclosure processes—the true noteholders
and mortgagees, the MERS filings have created a significant hole in this
important public database.
The void in the mortgage database will directly and measurably harm the
constituents of community groups, such as the University Neighborhood Housing
Program (UNHP), who will no longer reap benefits achieved through negotiations
with the largest foreclosing entities in the Bronx, entities which have been
identified through UNHP’s tracking of information about Bronx residential
lending.29 These benefits have included negotiated loss mitigation procedures and
the creation of an Asset Control Area program to renovate and sell 300 FHA
insured foreclosed homes to qualified first time moderate-income homebuyers.
Moreover, MERS’ anticipated penetration of the Bronx multi-family market will
likely cripple UNHP’s Building Indicator Project (BIP), whose database has
enabled the identification and repair of distressed rental housing. The BIP’s
database of more than 7,000 Bronx multifamily apartment buildings, including
ownership, building size, housing code violation, city lien, and critically, mortgage
Estimated annual filings for 2000 and 2006 were based on the two months of filings for those
years.
29 UNHP’s research shows MERS was plaintiff in 305 (11%) of the 2,770 auctions scheduled in
the Bronx over the past 4 ½ years. If the use of MERS continues to grow, it will become
increasingly difficult for groups like UNHP to track who is foreclosing in their neighborhoods
and to undertake remediation efforts with the foreclosers that they have successfully engaged in
the past.
30
holder data, has enabled UNHP to engage lenders who, in turn, have pressured
building owners to make numerous repairs to Bronx rental housing stock.30
New York is not alone in facing the deterioration of its public mortgage
databases. MERS’ penetration of the City of Chicago’s database starkly presents
this problem. In 1999, NTIC undertook its comprehensive study of subprime
lending in the Chicago area over a five year period from 1993-1998. At that time,
no lender or mortgagee’s identity was hidden by the MERS label. See Nagazumi,
Preying on Neighborhoods at 25. (Figure 10 displays the top 34 lenders
responsible for high interest rate foreclosures in 1998). By 2005 MERS itself was
identified as the largest foreclosing entity in Chicagoland, with 1,100 foreclosure
filings. Hidden from public view were the identities of the actual foreclosing
lenders and possibly the perpetrators of the most egregious lending practices. See
Rose, Chicago Update 2006 at 11 (Table 8 shows the most active foreclosing
institutions in 2005). As in Chicago, MERS topped the list of the largest
foreclosure filers during the period 2000-2005 in Atlanta, named as the foreclosing
agent on 41,467 or 16.1 percent of all filings, and was the largest filer in
30 Similarly, St. Ambrose Housing Aid Center, a housing advocacy group in Baltimore,
Maryland representing homeowners victimized by predatory mortgage lending regularly
searched the land records to identify homeowner victims of suspect lenders and to identify any
assignees. St. Ambrose is no longer able to identify many of these assignees and can no longer
assess their complicity in promoting the origination of abusive mortgages.
31
foreclosure tracts with very high foreclosure rates. Duda, Atlanta at 15 -17 &
Figure 3-1.31
The erroneous identification of MERS as lender of record in Jefferson
County and throughout the state during 2000 to 2002 tainted research into
foreclosure trends in Kentucky. See Steve C. Bourassa, Predatory Lending In
Jefferson County: A Report to the Louisville Urban League, 2 (Urban Studies
Institute, University of Louisville) (December 2003).32 As one of the largest
foreclosers of predatory loans, MERS’ presence on the public record masked the
identity of its constituent lenders, the true mortgagees, and obscured the true make
up of the loan portfolio foreclosed upon.
The MERS filing spreads a cloak of invisibility over any member
mortgage/note-holder that purchases a loan following origination. The lender
whose loose underwriting guidelines or careless oversight facilitated the
origination and sale of foreclosure-prone loans is carefully hidden from public
view by the MERS system. See e.g. Duda, Atlanta at 19. In shielding the identity
of these mortgage transaction participants, the MERS label hobbles researchers,
who, because of missing data, are less able to ascertain whether escalating
31Over the past year, from July 1, 2005-June 30, 2006, MERS, has also become one of the four
top foreclosers in West Virginia. See Report of West Virginia Foreclosures, available from
Mountain State Justice.
32 This report is available at: http://www.lul.org/Predatory%20Lending%20Report.pdf
32
foreclosures are caused by a small number of rogue players—who may be dealt
with through enforcement actions—or are part of a systemic problem that requires
a targeted legislative response. Whether this cloaking of its members’ transactions
resulted from a conscious plan or was simply a felicitous byproduct of MERS’
money saving scheme, the result is the same—a dangerous and destructive attack
on the public databases.
D. The MERS Shield Creates an Irretrievable Void in the Property
Records that Harms Many Constituencies.
The void in the property records harms a broad array of entities and, unless
this process is reversed, these data will be irretrievably lost to the public. Law
enforcement agencies may be stymied in their efforts to investigate and prosecute
criminal mortgage fraud and property flipping if deprived of important data
sources on which they have relied in the past. See, e.g., People v. Albertina;
People v. Larman; People v. Sandella; People v. Constant; Altegra Credit Co. v.
Tin Chu, supra. State legislatures will face obstacles to understanding the root
causes of mortgage-related problems and will be unable to identify offending
entities if they can no longer rely on public databases that have served to inform
them about past foreclosure crises in their jurisdictions. Similarly, local
governments which have turned to the land and court records data to understand
the origins of escalating foreclosures in their communities will no longer have the
necessary data upon which to base their analyses. Instead, those lenders and
33
investors who are the primary offenders will be able to hide behind the cloak of
invisibility provided by MERS.
E. Restoration and enhancement of the public database is critical to
enable government to function effectively.
It is essential that the land and court records of this nation remain public and
contain the information required by law—namely, the true identity of the
participants in the mortgage transaction. Governments and researchers must
continue to have the ability to evaluate the full range of public data, including the
land and court records, in investigating the root causes of foreclosures and other
problems and trends in the housing markets. Without this data they will be unable
to discover whether specific entities are primarily responsible for increased
foreclosures, or whether there is an industry-wide problem. They will be unable to
assess which secondary market lenders facilitate abusive lending, or which
servicers are quick to foreclose.
State and local government have a particular interest in preserving the
integrity of the public data sources in the land and court records, as these records
have been a key component of research analyzing the costs imposed by
foreclosures on municipalities and neighboring homeowners and businesses.
Concentrations of foreclosures impose a particularly high societal cost on
surrounding neighborhoods (through reduced property values) and on government
for neighborhood services (for increased policing, social services, fire and trash)
34
and reductions in the tax base. One recent study estimated that foreclosures in high
foreclosure areas imposed costs up to $34,000 on the city and up to $220,000 on
neighboring homeowners. See Apgar, Municipal Cost of Foreclosures; Apgar,
Collateral Damage; Duda, Atlanta at 15 33 These studies have also revealed the
devastating impact of predatory lending on long overdue gains in inner city
minority homeownership, as foreclosures have decimated equity and destroyed
neighborhood vitality virtually overnight. See Kathe Newman & Elvin K. Wyly,
Geographies of Mortgage Market Segmentation: The Case of Essex County, New
Jersey, 19 Housing Stud. 53, 54 (Jan. 2004); Housing Council (2003), Residential
Foreclosures in Rochester, New York 10 (foreclosures erode sales prices of nearby
homes). Government has a right to seek to minimize these societal costs and to
transfer those costs to the mortgage participants responsible for the transactions.
However, since foreclosure avoidance strategies, targeted legislation and
regulation depend on the availability of data to inform decision-making, where
MERS has caused a critical source of heretofore public data to disappear, states,
cities and advocates no longer have sufficient information to respond in a carefully
33 See also Immergluck, External Costs of Foreclosure; Daniel Immergluck & Geoff Smith,
There Goes the Neighborhood: The Effect of Single-Family Mortgage and Foreclosures on
Property Values at 9. (2005). This report is available at:
http://www.woodstockinst.org/publications/task,doc_download/gid,52/Itemid,%2041/
(Homes in low and moderate income neighborhoods in Chicago experience between 1.44 and 1.8
percent decline in value for every home foreclosed within one-eighth of a mile).
35
targeted and not overly inclusive way. See Duda, Atlanta at viii. Thus, “in Fulton
County [GA] and other places with foreclosure problems, the fact that entities
without the legal ability to make servicing decisions [MERS] are registered with
the county has been identified as a major obstacle to municipal foreclosureavoidance
efforts. . . .” Duda, Atlanta at 15. Similarly, the University
Neighborhood Housing Program in the Bronx and many other community groups
are losing an important tool that has enabled them to improve the communities of
their constituents.
F. More, not less public data is needed to enable a carefully targeted
and rapid governmental response to problems in the housing
market.
Foreclosure remains34 a key problem in today’s housing markets.
Particularly in low-income neighborhoods, foreclosures can lead to vacant or
abandoned properties that, in turn, contribute to physical disorder in a community.
See Immergluck, External Costs of Foreclosure, supra. This disorder can create a
haven for criminal activity, discourage the formation of social capital, and lead to
disinvestment in communities.
34 Foreclosure rates continue their meteoric rise, presenting significant problems and hardships
for affected homeowners, their surrounding communities and local governments. In August
2006, 115,292 properties throughout the nation entered foreclosure, a 24 percent increase over
the foreclosure level in July and 53 percent increase over foreclosures in 2005. See Les Christie,
“Foreclosures Spiked in August,” (Sept. 13, 2006), available at:
http://money.cnn.com/2006/09/13/real_estate/foreclosures_spiking/index.htm?postversion=2006
091305.
36
The costs flowing from problems in the housing market impact not only
lenders and borrowers directly involved in the sale or purchase of homes. The
costs can have a significant effect on entire communities. See id. For instance,
concentrated foreclosures can affect the property values of homes in the same or
adjoining neighborhoods. If policymakers are to truly understand the context in
which foreclosures take place and subsequently create legislation to obviate the
problems created by foreclosures (and thereby alleviate related social and
economic difficulties faced by individuals and communities), more data is
necessary and its accessibility to the public is imperative.
Researchers agree and have suggested that the solution to understanding
complex mortgage related problems is to require more not less information and to
further impose more not fewer costs on mortgage participants. See NHS of
Chicago, Preserving Homeownership, supra. Contrary to the attack on the public
databases and public revenues undertaken by MERS, the authors recommend
creating loan performance and foreclosure databases that contain sufficient
information to enable the tracking and assessment of key causes of delinquency
and default.35 These databases would be used to shape more effective legislation,
mitigate public costs and abusive practices and target foreclosure hotspots “without
35 Apgar and Duda recommend tracking all loans, all parties to the loans, loan terms, and would
at a minimum require the disclosure of the note holder and servicer whenever foreclosure is
threatened.
37
stemming the flow of credit to low-income, low-wealth and credit-impaired
borrowers. Id. at 84.
States such as Illinois have already demonstrated a strong interest in
gathering more information about high cost mortgage loans. Illinois’s newly
created data collection program requires all licensed mortgage brokers and loan
originators to enter detailed information into a database for residential mortgage
loans in designated areas in Chicago. See Public Act 094-0280 (HB 4050). This
database project is designed to address predatory practices and high foreclosure
rates. The federal government has also moved to increase data collection for high
cost loans.36
Another key recommendation that has emerged from municipal studies is to
increase public awareness of the significant foreclosure costs imposed on
communities by mortgage participants and reallocate those costs that are
“rightfully the responsibility of borrowers, lenders and others that are direct parties
to the mortgage transaction” to the transactions that created them through increased
filing fees and creation of an industry fund. Duda, Atlanta at 26-27; see also
36 Reacting to a 2001 joint HUD-U.S. Department of the Treasury report that found a
disproportionately high level of high cost, subprime refinance lending in predominantly black
neighborhoods, as compared to predominantly white neighborhoods, the Federal Reserve Board
ramped up its HMDA data reporting requirements in 2004. See HUD-Treasury Report 2000,
supra. Lenders who make high cost, subprime loans must now provide pricing information for
these loans. See Federal Financial Institutions Examination Council, A Guide to HMDA: Getting
it Right! (Dec. 2003).
38
Apgar, Municipal Cost of Foreclosures at 35. Such fees would reduce the
municipal expenditures and loss of neighboring equity that currently function as
effective subsidies to the most abusive transactions.
Land and court records serve as vitally important research tools for
government, community organizations and academic researchers. A private entity,
such as MERS, must not be allowed to deplete the public databases of land and
court records or to undermine the public’s significant and enduring interest in
preserving the integrity of these public databases of land and court records.
VI. MERS’ Subversion of the Public Policy Behind Public Recordings Costs
County and City Clerks Over a Billion Dollars.
MERS’ erosion of the public databases has, as its designers intended, created
a drain on the public treasuries. This transfer of significant revenues from county
and city clerks throughout the country to MERS and its members, is an
unwarranted interference with the clerks’ public recordation function.
In April 2006, MERS announced that 40 million mortgages were registered
with MERS. 40 Millionth Loan Registered on MERS (Inside MERS, May/ June
2006), available at http://www. mersinc.com/newsroom/currentnews.aspx. MERS
admits that a loan is transferred many times during its life. MERS Br. at 51. With
an average recordation cost of $22 for each mortgage assignment, multiplied by 40
million loans and then multiplied again to account for the many transfers that occur
during the life of a loan, the appropriation of public funds effected by the MERS
39
system is staggering. See http://www.mersinc.com/why_mers/index.aspx (last
visited October 4, 2006). Based on a conservative estimate that each of the 40
million loans on the MERS system is assigned three times each during the life of
the loan, the cost to county and city clerks nationwide from the inception of the
MERS system through April 2006, has been an astounding $2.64 billion. This
figure is continuing to grow as new mortgages are registered daily on the MERS
system.
Through its charge of $3.95 per loan, MERS has instead diverted gross
revenues of $158 million to itself. The MERS artifice has enabled the redirection
of far greater revenues away from the public treasuries and back to lenders through
improper avoidance of recordation costs. In so doing, MERS has subverted the
important public function of the county clerks and interfered with the rightful
collection of funds owing to the public treasuries.
VII. MERS Lacks Standing to Bring Foreclosure Actions in Its Name.
MERS’ standing to commence a foreclosure action in New York is a matter
of great dispute, and has led to much confusion in the courts. As a general matter,
standing to foreclose in New York requires ownership of the note. See, e.g.,
LaSalle Bank National Ass’n. v. Holguin, No. 06-9286, slip opinion at 1 (N.Y. Sup.
Ct. Suffolk Cty., Aug. 9, 2006); Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d
40
92 (2d Dept. 1988). Neither MERS’ status as nominee for the beneficial owner nor
its status as mortgagee is sufficient to create standing.
As noted in a Connecticut case denying MERS summary judgment due to a
dispute as to ownership of the note, MERS, as nominee, generally has rather
limited rights and standing:
A nominee is one designated to act for another as his/her
representative in a rather limited sense…in its commonly accepted
meaning, the word ‘nominee’ connotes the delegation of authority to
the nominee in a representative capacity only, and does not connote
the transfer or assignment to the nominee of any property in or
ownership of the rights of the person nominating him/her.
Mortgage Electronic Registration Systems, Inc. v. Rees, 2003 Conn. Super. LEXIS
2437 (Conn. Superior Ct. September 4, 2003). See also MERS v. Shuster, No. 05-
26354/06 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006) (denying MERS’s motion
for default since MERS is merely nominee); MERS. v. Burek, 798 N.Y.S.2d 346
(N.Y. Sup. Ct. 2004) (distinguishing Fairbanks Capital Corp. v. Nagel, 289
A.D.2d 99, 735 N.Y.S.2d 13 (1st Dep’t 2001), since Fairbanks was a servicer and
identified itself as such).
The splitting of the ownership of the note and the mortgage is even more
problematic. Under well-established principles, the mortgage follows the note. See
U.C.C. §§ 9-203(g), 9-308(e); Restatement (3d), Property (Mortgages) § 5.4(a)
(1997). As an Illinois court noted, “It is axiomatic that any attempt to assign the
41
mortgage without transfer of the debt will not pass the mortgagee’s interest to the
assignee.” In re BNT Terminals, Inc., 125 B.R. 963, 970 (Bankr. N.D. Ill. 1990).
MERS has no status as mortgagee if the note is in fact owned and held by another
entity, as is always the case with MERS. Thus, MERS’ status as mere nominee is
insufficient to give it standing to foreclose, or take any legal action against a
borrower whatsoever. The recording of MERS as mortgagee when it does not and
cannot own the note is inherently confusing and misleading.
There have now been a large number of recent New York decisions denying
foreclosures brought by MERS, on the basis that MERS does not own the note and
mortgage, and therefore does not have either standing to sue or the right to assign
ownership of the note and mortgage to a foreclosing plaintiff. See, e.g., MERS v.
Wells, No. 06-5242, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty., Sept. 25, 2006) (“It
is axiomatic that the Court, for the security of ensuring a proper chain of title, must
be able to ascertain from the papers before it that the Plaintiff has the clear
authority to foreclose on property and bind all other entities by its actions”);
LaSalle Bank Natl Assn. v. Holguin, supra., slip op. at 2 (“Since MERS was
without ownership of the note and mortgage at the time of its assignment thereof to
the plaintiff, the assignment did not pass ownership of the note and mortgage to the
plaintiff”, and the plaintiff thus failed to establish ownership of the note and
mortgage); LaSalle Bank v. Lamy, 2006 N.Y. Misc. Lexis 2127 (NY. Sup. Ct.,
42
Suffolk Cty., Aug. 17, 2006) (the “assignment of the mortgage to the plaintiff,
upon which the plaintiff originally predicated its claims of ownership to the subject
mortgage, was made by an entity (MERS) which had no ownership interest in
either the note or the mortgage at the time the purported assignment thereof was
made”); MERS. v. Burek, 798 N.Y.S.2d 346, 347 (N.Y. Sup. Ct., Richmond Cty.
2004) (denying summary judgment to MERS since MERS “is merely the selfdescribed
agent of a principal”); MERS v. Shuster, No. 05-26354/06 (N.Y. Sup.
Ct., Suffolk Cty., July 13, 2006) (denying MERS’s motion for default since MERS
owns neither the note or mortgage); MERS v. DeMarco, No. 05-1372, slip op. at 1-
2 (N.Y. Sup. Ct., Suffolk Cty., April 11, 2005) (ex-parte motion for default denied
because: a) the plaintiff was not named as the lender in either the note or
mortgage, and b) there was no proof that the plaintiff was the owner of the note
and mortgage at the time the action was commenced by reason of assignment or
otherwise”); Deutsche Bank National Trust Company as Trustee v. Primrose, No.
05-25796 (N.Y. Sup. Ct., Suffolk Cty., July 13, 2006); Everhome Mortgage
Company v. Hendriks, No. 05-024042 (N.Y. Sup. Ct., Suffolk Cty., June 27, 2006);
MERS v. Ramdoolar, No. 05-019863 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2006);
MERS v.Delzatto, No. 05-020490 (N.Y. Sup. Ct., Suffolk Cty., Dec. 9, 2005);
MERS, Inc. v. Parker, No. 017622/2004, slip op. at 2 (N.Y. Sup. Ct., Suffolk Cty.
Oct. 19, 2004) (denying MERS’ motion for default judgment since MERS does not
43
own the note); MERS, Inc. v. Schoenster, No. 16969-2004, (N.Y. Sup. Ct., Suffolk
Cty., Sept. 15, 2004); see also Andrew Harris, Suffolk Judge Denies Requests by
Mortgage Electronic Registration Systems, N.Y. LAW J. (Aug. 31, 2004)
(discussing four foreclosure cases in Suffolk County that were dismissed in one
day because the judge held that MERS cannot foreclose because it is not the owner
of the note or mortgage).
Other state courts have also questioned MERS’ standing to proceed with
foreclosures. For example, in Florida, there have been a string of decisions
dismissing foreclosures brought by MERS based on its lack of standing. See, e.g.,
Mortg. Elec. Registration Sys., Inc. v. Azize, No. 05-001295-CI-11 (Fla. Cir. Ct.
Pinellas Cty. Apr. 18, 2005) (dismissing 28 individual foreclosures brought by
MERS on the basis of MERS’ lack of ownership of the notes), appeal docketed,
No. 2D05-4544 (Fla. Dist. Ct. App. 2d Dist. 2005); Mortg. Elec. Registration Sys.,
Inc. v. Griffin, No.16-2004-CA-002155, slip op. at 1 (Fla. Cir. Ct. May 27, 2004)
(dismissing foreclosure initiated by MERS based on lack of standing); see also
MERS v. Rees, supra. (denying summary judgment to MERS because a genuine
issue of fact existed regarding the current ownership of the note; a discrepancy
existed between the affidavit submitted by MERS claiming that it owned the note
and the information on the note); Taylor, Bean & Whitaker, Mortg. Corp. v.
Brown, 583 S.E.2d 844 (Ga. 2003) (reserving for the trial court a determination of
44
whether “MERS as nominee for the original lender and its successors, has the
power to foreclose . . .”).
Amici have represented homeowners in many cases in which MERS has
commenced a foreclosure in its name claiming to own the note and mortgage yet
has never been able to adduce any proof of its ownership of either. For example,
in Kings County Supreme Court, MERS sued Jean Roger M. Bomba and Martin C.
Bomba in a foreclosure action. MERS v. Bomba, No. 1645/03 (N.Y. Sup. Ct.,
Kings County). The Bomba complaint is riddled with mistruths and obfuscations,
including: (1) the true note holder is never mentioned; (2) MERS alleges that its
address is 400 Countrywide Way, Simi Valley, CA 93065 (which is actually
Countrywide Home Loans’ address, not MERS’ address); and (3) MERS alleges
on information and belief that it is the “sole, true and lawful owner of said
bond/note and mortgage.” Id. Amicus SBLS is representing Martin C. Bomba, and
has raised defenses, including the lack of MERS’ standing to bring the foreclosure,
but the merits have not yet been reached in the case. The confusion that MERS
engenders in the courts is typified by the judge’s order denying MERS’ unopposed
motion for an order appointing a referee in MERS v. Trapani, No. 04-19057, slip
op. at 1 (N.Y. Sup. Ct., Suffolk Cty., Mar. 7, 2005):
The submissions reflect that neither the nominal plaintiff, Mortgage
Electronic Recording Systems, Inc. (“MERS”), nor Countrywide
Home Loans, Inc. (“Countrywide”), for which MERS purports to be
the “nominee”, is the record owner of the mortgage sought to be
45
foreclosed herein. The note and mortgage that are the subject of this
foreclosure action identify the lender as Alliance Mortgage Banking
Corp. MERS is identified in the mortgage instrument only as ‘a
separate corporation that is acting solely as a nominee for Lender and
Lender’s successors and assigns.’ There is no allegation or proof in
the submissions as to any assignment of the note and mortgage to
Countrywide, to MERS, or to any other entity, and plaintiff’s counsel
has asserted no authority, statutory or otherwise, for the bare assertion
that ‘[w]here ‘MERS’ is the mortgagee of record there is no need to
prepare an assignment.’
MERS has, in revisions to its Rule 8 governing how foreclosures are
brought, attempted to address the standing problem.37 Now foreclosures can no
longer be brought in MERS’ name in Florida. They may be brought in MERS’
name elsewhere only if the note is endorsed in blank, held by the servicer, and
MERS cannot be pled as the note holder. MERS thus admits that it does not own
the note, and never owns the note. MERS also admits that it is not the entity
initiating or controlling the foreclosure. However, MERS still continues to endorse
hiding the true owner from the borrower: MERS does not require the note holder
to be identified; and MERS permits the owner of the note to designate anyone,
other than MERS, to foreclose, so long as the mortgage, but not the note, is
assigned to the third party.
In its brief, MERS attempts to characterize the various cases denying
standing to MERS to foreclose as cases that are decided based on defective
37 See Jill D. Rein, Significant Changes to Commencing Foreclosure Actions in the Name of
MERS, available at http://www.usfn.org/AM/Template.cfm?Section=Article_Library&
template=/CM/HTMLDisplay.cfm&ContentID=3899.
46
pleading rather than on fundamental standing problems. MERS Br. at 57-66.
However, the pleading defects and the standing problems are one and the same.
MERS creates categories not recognized by the law, and intentionally and
systematically conceals from borrowers, attorneys, and judges the true owner of
the note. It is this concealment that consistently causes both the pleading defects
and the standing problems. MERS continues to flaunt rules of civil procedure for
private gain, causing massive confusion among borrowers, counsel, and the courts.
CONCLUSION
Without any legal authority, MERS is eroding the public databases of this
nation and unjustly withholding critically important information from
homeowners. MERS is designed as a profit-engine for the mortgage industry,
without regard to its infringement of essential public and individual rights.
Because MERS has no beneficial interest in mortgages and should not be permitted
to forcibly effect its intentionally obfuscating recordations, this Court should find
in favor of Respondents-Appellants, Edward P. Romaine and the County of
Suffolk and against Petitioners-Appellants-Respondents, MERS.
Dated: October 6, 2006
Brooklyn, NY
47
Respectfully Submitted,
___________________________
Meghan Faux, Esq.
Josh Zinner, Esq.
Foreclosure Prevention Project
SOUTH BROOKLYN LEGAL SERVICES
105 Court Street
Brooklyn, NY 11201
(718) 237-5500
Attorneys for Amicus Curiae
Nina F. Simon, Esq.*
AARP FOUNDATION LITIGATION
601 E Street, NW
Washington, DC 20049
(202) 434-2059
For Amicus Curiae AARP
Seth Rosebrock, Esq.*
CENTER FOR RESPONSIBLE LENDING
910 17th Street, N.W., Suite 500
Washington, D.C. 20006
202-349-1850
James B. Fishman, Esq., Of Counsel
NATIONAL CONSUMER LAW CENTER
77 Summer Street, 10th Floor
Boston, MA 02110-1006
(617) 542-8010
(Fishman & Neil, LLP
305 Broadway Suite 900
New York, NY 10007)
Brian L. Bromberg, Esq., Of Counsel
NATIONAL ASSOCIATION OF CONSUMER ADVOCATES
1730 Rhode Island Ave., NW, #805
Washington, D.C. 20038
(202) 452-1989
(Bromberg Law Office, P.C.
48
40 Exchange Place, Suite 2010
New York, NY 10005)
April Carrie Charney, Esq.*
JACKSONVILLE AREA LEGAL AID, INC.
126 West Adams Street
Jacksonville, FL 32202
(904) 356-8371
Ruhi Maker, Esq.
EMPIRE JUSTICE CENTER
One West Main Street, 2nd Floor
Rochester, NY 14614
(585) 295-5808
Donna Dougherty, Esq.
Dianne Woodburn, Esq.
LEGAL SERVICES FOR THE ELDERLY IN QUEENS
97-77 Queens Blvd. Suite 600
Rego Park, New York 11374
Ph 718-286-1500, ext 1515
Diane Houk, Esq.
Pamela Sah, Esq.
FAIR HOUSING JUSTICE CENTER
HELP USA
5 Hanover Square, 17th Floor
New York, NY 10004
(212) 400-7000
Sarah Ludwig, Esq.
NEIGHBORHOOD ECONOMIC DEVELOPMENT
ADVOCACY PROJECT
73 Spring Street, Suite 50
New York, NY 10012
212-680-5100, ext. 207
Oda Friedheim, Esq.
THE LEGAL AID SOCIETY
120-46 Queens Boulevard
49
Kew Gardens, New York 11415
Tel 718 286 2450
Margaret Becker, Esq.
Foreclosure Prevention Project
LEGAL SERVICES FOR NEW YORK CITY – STATEN ISLAND
36 Richmond Terrace
Staten Island, NY 10301
(718) 233-6480
Treneeka Cusack, Esq.
LEGAL AID BUREAU OF BUFFALO
237 Main Street, Suite 1602
Buffalo, New York 14203
(716) 853-9555, ext 522
* Pro Hac Vice
50
CERTIFICATE OF COMPLIANCE
I hereby certify that the above brief was prepared on a computer using
Microsoft Word, and using Point 14 Times New Roman typeface, in double space.
The total word count, exclusive of the cover, table of contents, table of citations,
proof of service, and certificate of compliance, is 9,451.
__________________________
Meghan Faux

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