January 17, 2011
A Utah court has granted a borrower’s quiet title action against the original lenders and the original trustees named in the Deeds of Trust, even though MERS was identified in the Deeds of Trust. The attorney for the borrowers took the position that MERS did not have to be named in the action or served with court papers as it was not, and could not be, the beneficiary under the Deed of Trust and as it did not lend money. The Defendants failed to respond to the action, thus paving the way for a Default Judgment in favor of the borrower.
Based on this result, there is a planned challenge to an earlier Utah Federal court ruling in favor of MERS.
The line of reasoning in this case is similar to that set forth in numerous rulings from other jurisdictions including recent decisions in Oregon which have stated that MERS cannot be the “beneficiary” under the Oregon Trust Deed Act. Although more and more states are adopting this rationale, there are still a few holdouts, most notably Arizona, which continues to cling to the “MERS as agent” theory which has been rejected by numerous courts across the nation on many grounds, including the fact that MERS and the lender intentionally chose the word “nominee” to designate MERS, and not “agent” or “power of attorney”.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com