September 30, 2010
A Michigan trial court has denied the Defendants’ Motion to Dismiss a Complaint filed by the borrowers to challenge a nonjudicial foreclosure; denied the Defendants’ request that the borrower make escrow payments; and has requested additional documentation in connection with the Court’s concern as to the alleged authority of MERS to assign the note and mortgage. The borrowers are represented by Jeff Barnes, Esq. together with local Michigan counsel. The case involves a multi-level securitization.
The borrowers sued US Bank as the alleged “successor trustee” to Bank of America as successor by merger to LaSalle Bank as Trustee for a First Franklin securitized mortgage loan trust; MERS; and First Franklin. The supporting legal Memorandum prepared by Mr. Barnes highlights Michigan law which has held that there is no Michigan case law as to the authority of lender nominees or MERS and thus Michigan has looked to decisions from New York and Kansas involving these issues for guidance. The case cites the Landmark decision from Kansas within the opinion.
We view this interim decision as a clear indication that the courts of Michigan, like the courts of Oregon, California, Kansas, Nebraska, Vermont, Arkansas, Nevada, Missouri, and others are not blindly accepting MERS’ purported authority to assign mortgage paper and that MERS “solely as nomnee” cannot do so.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com