April 27, 2011

The Michigan Court of Appeals has issued a decision for publication dated April 21, 2011 which undoes MERS’ ability to institute non-judicial foreclosures by publication. The very well-reasoned opinion goes through the history of what MERS is using much of the MERS case law which FDN has been using in cases across the United States, and analyzes this against the Michigan foreclosure by advertisement statute, which does not contain any provisions for “nominees” or other non-owners of promissory notes to institute foreclosure.

The case distinguishes the Jackson decision from Minnesota, noting that the Minnesota statute does permit a nominee to undertake foreclosure action. Michigan’s statute is very different, and the Court went to significant length to set forth the reasons why MERS does not qualify as a party with the ability to institute foreclosure under the Michigan statute.

FDN has added additional counsel in Michigan, and our attorneys have already prepared Motions for Summary Judgment in MERS cases based on this new appellate decision.

Separately, one of the presiding Judges in the Ft. Myers (Lee County, Florida) foreclosure division announced today at a “docket sounding” that the current foreclosure system there (which those of us who practice there know to be the “rocket docket”) will cease to exist as of June, 2011. This announcement came in the wake of the recent ACLU appeal to the Florida Second District Court of Appeal which illustrates the constitutional infirmities with the current Lee County foreclosure system.

Although the Judge announced that the Court “has no firm exit stragtegy” from the present system, Jeff Barnes, Esq., who was present in that court today for a hearing, also discussed the matter with several court personnel after the hearing, who advised that they have been told that the cases will probably revert back to the original assigned Judge to proceed in the normal manner of other civil cases.

This is a step in the right direction. Borrowers will now be provided with the same protections in litigation as other, non-foreclosure litigants, and not be subjected to the arbitrary and debilitating “rocket docket” procedures which essentially railroaded foreclosure cases through a system of disparate treatment and to the advantage of the trustee banks, servicers, and “rent-a-lawyers” who appeared at the rocket docket hearings for the foreclosure mills day after day for the purpose of “rapid disposition” of borrowers’ interests in their homes and investment properties.

Jeff Barnes, Esq., www.ForeclosureDefensenationwide.com