How to Challenge a MERS Assignment in Court

By Donna Steenkamp Head of Research at Living lies/Defend the Foreclosure

Few documents in foreclosure litigation are treated with more blind acceptance than a MERS assignment.

That is a mistake.

When a MERS assignment appears in the file, many homeowners assume it settles the transfer issue. Some lawyers treat it the same way. But a recorded assignment is not the end of the inquiry. It is the beginning of one.

The real question is not whether an assignment exists. The real question is whether it proves a real transfer of enforceable rights by a party with actual authority actually took place.

This is where the challenge begins.

What Is MERS?

MERS stands for Mortgage Electronic Registration System. In many mortgage transactions, MERS appears in the public records as the nominee for the lender and the lender’s successors and assigns.

That wording has been used for years in mortgage and deed of trust documents. But the existence of MERS in the chain does not eliminate the need for proof because a proper chain of transfer that includes MERS must also take place.

If a foreclosure case depends on a MERS assignment, then the assignment should be examined carefully.

Why a Recorded Assignment Is Not Automatic Proof

Recording a document makes it part of the public record. It does not automatically prove the truth of everything stated in the document.

This is a critical point.

A MERS assignment may say that the mortgage or deed of trust was assigned to a new party. But that does not automatically prove that legal transfer occurred. Check these key points:

• that the signer had authority,
• that the transfer reflected a real transaction,
• that the assignment was executed at the right time, or
• that the assignee obtained the full right to enforce the debt.
• that all leading transfers were done as required

Those are separate questions, and they matter.

Why Timing Matters

One of the first things to examine is timing.

Was the assignment executed years after the loan supposedly entered a trust? Was it signed shortly before foreclosure began? Was it created after a default or after litigation had already started? Was it after the Trust’s closing date? (super important)

Late-created assignments can raise major questions.

Sometimes they appear to be efforts to patch over holes in the chain of title rather than evidence of a genuine transfer that happened when it was supposed to happen.

Importantly, the purchase of the subject loan by the named Trust Depositor must be completed no later than 90 days of the Trust’s closing date or it is considered a “prohibited transaction” by Internal Revenue Code (IRC) § 860 D (a)(4), F (a) and G (d) (1) at 26 U.S.C. § 860 D and F.

Why Authority Matters

Who signed the assignment?

That question is often more important than the assignment itself.

You want to know:

• who the signer worked for,
• what authority the signer had,
• whether the signer was acting under a valid corporate resolution or appointment, and
• whether the assignment was executed as part of a real transfer or just for foreclosure purposes.

An assignment signed by someone with no proven authority is weak. And if the foundation for that authority is missing, the document should not be treated as self-proving.

The Difference Between Assigning a Mortgage and Proving the Right to Enforce

This is another point many homeowners miss.

Even if a mortgage or deed of trust was assigned, that does not automatically prove the assignee has the right to enforce the debt.

The security instrument follows the debt only if the underlying legal requirements are met. That means the foreclosure claimant still must connect the assignment to the right to enforce the obligation. It must adhere to the requirements as outlined in the Trust’s governing documents. (we have unique access to these documents and can help you use our access to provide evidence in your case)

In simple terms, moving a piece of paper around is not always the same as proving the right to collect and foreclose.

Common Red Flags in MERS Assignments

Here are some warning signs:

• the assignment appears years after closing or default,
• the signer’s authority is unclear,
• the assignor no longer appears to have an interest,
• the assignment conflicts with the trust documentation,
• the transfer bypasses a transfer to the Trust’s depositor who is the only authority able to purchase loans for the Trust,
• the document appears created just before suit or sale, and
• the witness offering it cannot explain the underlying transaction.

Any one of these may justify closer examination.

Why Homeowners Should Focus on Evidence, Not Slogans

Some people say “MERS is illegal” as if that alone wins the case. Usually it does not. Some states accept MERS transfers as gospel and some don’t.

The better strategy is more disciplined. Do not rely on slogans. Focus on what this specific assignment does or does not prove.

Ask:

• Who authorized it?
• What transaction does it reflect?
• When was it executed and why then?
• Was transfer done properly?
• Does it match the rest of the claimed chain?
• Can the witness authenticate it and explain its basis?

That is how courts are more likely to take the issue seriously.

How to Challenge a MERS Assignment in Litigation

If your case is already in court, the challenge may include:

• objecting to foundation,
• challenging hearsay and business-record claims,
• seeking discovery on signer authority,
• requesting documents supporting the transfer,
• testing whether the assignment was created only for litigation, and
• arguing that the assignment does not prove standing by itself.

The key is not to treat the assignment as sacred. It is evidence to be examined, not worshiped.

How This Fits the Bigger Foreclosure Defense Strategy

A MERS assignment challenge is rarely strongest as a stand-alone issue. It becomes most effective when connected to larger problems in the case, such as:

• lack of standing,
• unclear creditor identity,
• servicer authority problems,
• broken transaction trail, and
• weak witness foundation.
• Obtaining information (loan level data) that states the loan is being reported by an unknown entity on Wall Street not reflected in the county record.

That is how you move from attacking one document to attacking the legal basis of the foreclosure itself.

Why This Matters for Homeowners

Foreclosure documents are often designed to look final, official, and unquestionable, especially if they are recorded. However, county recorders are not allowed to determine if a document is valid or not. That appearance is part of the strategy. It discourages challenge.

But courts are supposed to decide cases based on evidence, not intimidation by paperwork.

If the assignment is weak, late, unsupported, or disconnected from a real transaction, then it should be challenged accordingly.

Conclusion

A MERS assignment should never be accepted just because it was recorded or filed in the case.

Look at the timing. Look at the signer. Look at the authority. Look at whether it proves a real transfer connected to the right to enforce.

That is the real issue.

Do not let a document title do the work that evidence is supposed to do. Do not rely on what a title company may say as they are untrained to recognize many critical errors.

Make them prove the assignment means something. Ask us how. We’ve been saving homes nationally for over 20 years. Our team of legal professionals know how to analyze your case, document evidence to be used, and help you put it to use to save your home from an illegal foreclosure. Remember…

YOUR HOME IS YOUR CASTLE WE HELP YOU DEFEND IT

CALL US TODAY AT 866.216.4126

or submit your Case Statement here and get a free consultation. Don’t let them steal your home!

If you would like to see redacted examples of our loan level data research and expert affidavit’s to prove false and invalid assignments involving MERS ask to join our private facebook group here where we share proprietary documents and answer questions for our private community.

Internal link placeholders:

• The truth about securitized trusts
• Lack of standing in foreclosure
• Loan-level data and evidence

Frequently Asked Questions

Does a MERS assignment automatically prove who owns my loan?

No. A MERS assignment may be part of the claimed chain, but it does not automatically prove ownership of the debt or the right to enforce it.

Can I challenge a MERS assignment because it was signed late?

The timing of an assignment can raise important questions, especially if it appears created shortly before foreclosure or long after the supposed transfer should have occurred.

Is recording an assignment enough to make it valid in court?

No. Recording makes the document public, but the claimant still may need to prove authority, authenticity, and the legal effect of the assignment.

Tags: foreclosure defense, securitization
Posted in evidence, Fabrication of documents, foreclosure defenses, Foreclosure Questions, legal standing, securities fraud |