November 1, 2011

As most of you who follow the foreclosure websites know, the Attorney General of Delaware has recently instituted claims against MERS for fraudulent practices and other wrongful acts. We are glad to see that another AG has recognized what MERS is versus what it claims to be, and has taken action accordingly.

Jeff Barnes, Esq. represents borrowers, with the assistance of local counsel, in Delaware where MERS either filed the foreclosure action or was otherwise involved with the alleged “assignment” of the mortgage to a third party for purposes of either instituting or furthering a foreclosure. In each case, we have sought discovery as to MERS, including all sources of authority which would permit MERS to undertake any action to institute or further a foreclosure. In one case where we did, MERS (the Plaintiff in the foreclosure action) substituted with another entity.

Those of you who have even an inkling of the MERS issues know that MERS’ own self-imposed Terms and Conditions preclude the use of the MERS system to either create or transfer any beneficial interests in mortgage loans, and MERS disclaimed any status as a lender, servicer, credit advancer, or similar characteristic in the Nebraska Dept. of Finance v. MERS litigation years ago in order to avoid having to register as a mortgage broker and pay attendant fees, etc. Notwithstanding these affirmative representations by MERS’ own attorneys to the Nebraska Supreme Court, MERS then alleges, in the other 49 states, that it is the “beneficiary” of a Deed of Trust or the “mortgagee” of a mortgage or otherwise has the right to undertake actions directly related to the creation or transfer of a beneficial interest in a mortgage loan, such as executing an assignment of mortgage or deed of trust (oftentimes to a securitized mortgage loan trust years after the trust closed, which is not permitted by the trust documents), or substituting the original trustee (in a non-judicial foreclosure state) with a third-party “trustee sale company” (such as ReconTrust, Northwest Trustee Services. Quality Loan Service, Trustee Corps, etc.), for purposes of furthering a foreclosure.

For years, we have argued, based on numerous cases from over a dozen states which have addressed the issue, that these actions of MERS are illegal and fraudulent. We thank the AG of Delaware for recognizing that these actions are fraudulent and must be punished.

Jeff Barnes, Esq.,