Why Legan Standing Matters and How MERS Fits In

Disclaimer: This article is for educational purposes only. It is not legal advice. Consult with a licensed attorney in your jurisdiction before acting on anything contained herein.

What Is Legal Standing?

Legal standing refers to the right of a party to bring a lawsuit in court. In foreclosure, this means the lender must prove they have the legal right to foreclose — either by owning the loan or by showing authority to act on behalf of the true loan owner.

It sounds simple, but securitization and sloppy loan transfers have made “standing” one of the most contested issues in foreclosure litigation.

Why Standing Is Critical

1. Prevents Fraudulent Foreclosures
   Without standing, anyone could claim the right to foreclose. Courts require proof to ensure that only the legitimate creditor can enforce the loan.
2. Ensures Proper Documentation
   Mortgage industry practices often involve backdated, robo-signed, or fabricated paperwork. By demanding proof of standing, homeowners force lenders to show that transfers and assignments were lawful.
3. Maintains Accountability
   Requiring lenders to prove standing discourages reckless lending and enforces compliance with property and contract laws.

Case Spotlight: Bank of NY v. Silverberg

In Bank of NY v. Silverberg, 86 AD 3d 274 (N.Y. App. Div. 2d Dept. 2011), the New York appellate court held that MERS had no standing to foreclose.

The court ruled:

“Because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff.”

Key takeaways:

• MERS never owned the note or obligation.
• Assignments executed by MERS were a nullity.
• Without standing, foreclosure could not proceed.

This decision underscored the dangers of treating MERS — essentially a registry system and nominee — as if it were a lawful creditor.

Caution: Timing Matters

• Standing objections must be raised early. In some states, failure to raise lack of standing in the initial response to foreclosure litigation may waive the defense entirely.
• This is why immediate legal assistance is critical. As the saying goes, “you often only get one bite at the apple.”

How Livinglies Helps Homeowners

Our litigation support team assists both attorneys and pro se litigants in foreclosure defense:

• Evaluate Documentation: Spot flaws in assignments, endorsements, and standing claims.
• Challenge Standing: Draft motions to dismiss when lenders cannot prove legal standing.
• Litigation Support: Provide forensic audits, case analysis, expert affidavits, and testimony.

We focus on uncovering the real money trail — and exposing when lenders or servicers lack the legal right to foreclose.

Conclusion

Standing is more than a technicality. It is a fundamental safeguard in foreclosure defense. By challenging standing, homeowners can:

• Prevent fraudulent foreclosures.
• Hold lenders accountable.
• Level the playing field against powerful institutions.

While foreclosure defense is complex and outcomes are never guaranteed, a well-prepared challenge to standing can make the difference between losing a home and preserving it.

Need Help With Your Case?

Call us today at 844.583.5339
Submit your case statement online for a complimentary recommendation.
Visit LivingLies.me for resources and case insights.

Remember: Foreclosure defense is not simple, and there is no guaranteed result. Yes — you do need a lawyer.

Tags: lance denha esq.
Posted in foreclosure defenses, legal standing, Pleading |