Maine Supreme Court Invalidates MERS Standing

MAINE SUPREME JUDICIAL COURT    Reporter of Decisions

MERS v Saunders Law Court decision[1]

Decision: Docket: Argued: Decided:
Panel:
2010 ME 79 Cum-09-640 June 15, 2010 August 12, 2010
SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. JON E. SAUNDERS et al.

The good news is that we have yet another state Supreme Court invalidating the legal standing of MERS. But there are many other lessons to be learned from this decision. The main lesson for litigants without legal representation is that the sophistication of legal and procedural arguments has reached a point beyond the capabilities of virtually any layman.

In this case MERS filed a foreclosure action against Saunders. In a late attempt to avoid a decision that would clearly undermine MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Deutsche Bank National Trust Company attempted to correct the record by substituting itself in the motion for summary judgment after the trial court had already granted the motion for summary judgment in favor of MERS. It is the intricacies of legal procedure that must be observed here.

The court agreed that MERS did not have a stake in the proceedings and therefore had no standing. The court also agreed that a substitution of parties could not be used to cure a jurisdictional defect of lack of standing and was therefore an improper. (The importance of this part of the decision can only be apparent to seasoned litigators. Nearly all foreclosure cases involve late filings of papers intended to cure a jurisdictional defect or other defect).

Finally, and equally as important, the court concluded that “there are genuine issues of material fact.”

This Court made the assumption that the real party in interest was the bank but that the bank was not entitled to summary judgment as a matter of law because they were genuine issues of material fact. The assumption that the bank was a real party in interest is troublesome. It does not appear that there was any evidence in the record to support that assumption.

Before the bank had become a party to the action, it filed a motion to reconsider or amend the order denying the previous motion for summary judgment. The court noted that the bank filed an undated two-page allonge indicating that the originating lender transferred the note to the bank and also filed an assignment indicating that MERS had transferred any rights it had in the note or mortgage to the Bank.

The court also noted that the transfers occurred during the course of litigation. Of course we all know by now that MERS doesn’t have any interest or right in any note or mortgage.

The court stated “a party’s personal stake in the litigation is evidenced by a particularized injury to the party’s property, pecuniary or personal rights.” This wording is congruent with the wording of many other decisions in state and federal courts

The court specifically rejected the argument that a nominee could for any purposes be considered the mortgagee of record and therefore the party with a right to initiate foreclosure proceedings. MERS only right was the right to record the mortgage. The fact that the security instrument identified it as “the mortgagee of record does not change or expand that right.”

An interesting discussion on page 11 of the decision makes a distinction between judicial and nonjudicial states. “These cases are inapposite because nonjudicial foreclosures do not invoke the jurisdiction of the courts. Nonjudicial foreclosures proceed wholly outside of the judiciary, typically utilizing local law enforcement to affect a mortgage or and gain possession of the mortgaged property.”

The interesting procedural point was a finding by the court that Deutschbank, as a non-party had no standing to file any motion in the current proceeding. The implications of this reasoning are very interesting. Because the nominee had no jurisdictional standing, it had no right to bring the foreclosure in the first instance. Because the bank was not a party to the action filed by the nominee, it had no right to bring any motions in the foreclosure initiated by the nominee.

I think this last point is very important from both a tactical and legal perspective. The pretender lenders are using any pretense available in order to initiate a foreclosure and a judicial or nonjudicial state. Only after they are challenged do they attempt to correct obvious deficiencies and defects in the title chain relating to the original obligation between the borrower and the originating lender. Their strategy is clearly to finesse the basic requirements of due process, substantive law and the Rules of Civil Procedure. Arguing this position successfully obviously will take considerable knowledge, memorandums of law, and the ability to argue the point succinctly.

The court obviously recognized this strategy. “After substitution, the bank should have filed its own independent motion for summary judgment with a statement of material facts and supporting affidavits. The Saunders would then have had the opportunity to respond to the new motion and appropriately defend the foreclosure action against the real party in interest.”

On page 19 the court corroborates our arguments regarding evidence citing other cases in Maine. At a minimum a party attempting to foreclose a mortgage must provide proof of the existence of a mortgage and its claim on the real estate supported by evidence of a quality that could be admissible at trial. These facts must be included in the mortgage holder’s statement of facts.

In my opinion this position supports both arguments made on these pages regarding judicial and nonjudicial foreclosures, sales and evictions. None of them are valid and all of them are void unless supported by evidence of the truth of the chain of title. And non-judicial states that require minimal proffers by counsel instead of proof are committing legal error and applying nonjudicial statutes in a manner that is inconsistent with the due process requirements of the United States Constitution.

Tags: 2010 ME 79, Maine Supreme Judicial Court
Posted in bubble, Corruption, Eviction, evidence, expert witness, foreclosure mill, Modification, Motions, Pleading, securities fraud, Servicer |