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t	34	The real estate law and real estate transactions in the US are subject to state regulations and county level recordation requirements, since the time of the establishment of the US as an independent country.<ref>Recordations in Queen Anne's County, MD date from 1634. [http://www.courts.state.md.us/clerks/queenannes/landrecords.html].</ref> That made it quite cumbersome for financial companies to develop a smooth operation of a market based on US mortgages in the early 1980s.<ref>Concern over this is nothing new, though I can find no evidence that it originated in the early '80s. [http://www.dlapiper.com/files/Publication/2df70bb9-a986-42c3-92b6-e4d91bc67225/Presentation/PublicationAttachment/42d3cd64-ac40-448c-85ce-e615c44fcc17/070011026DLA.pdf]</ref> This is because every time a financial instrument containing [[Mortgage law\|mortgage]]s is sold, various state laws may require that the sale of each such mortgage (or [[Trust deed (real estate)\|deed of trust]]) be recorded in the local county courts in order to preserve certain rights (''e.g.'', the right to foreclose non-judicially), which triggers an obligation to pay corresponding recording fees.<ref>[http://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2708&ChapterID=29 e.g. see Illinois' Rental Housing Support Program Act, 310 ILCS 7]</ref> So, the financial industry, eager to trade in [[mortgage-backed security\|mortgage-backed securities]], needed to find a way around these recordation requirements, and this is how MERS was born to replace public recordation with a private one.<ref>That MERS amounts to a private recordation system is pretty-well established. see [http://tampa-bay-real-estate.com/realtor-news/mers-misery-looms/], [http://www.avvo.com/legal-answers/what-does-mortgage-electronic-registration-systems-639162.html] [http://corvuslaw.com/faq.html]</ref> By 2007, MERS registered some two-thirds of all the home loans in the US.<ref>[http://harpers.org/archive/2012/01/page/0031 "Stop Payment: A Homeowners Revolt Against the Banks"]. ''[[Harper's Magazine]]''. January 2012.</ref>	t	34	The real estate law and real estate transactions in the US are subject to state regulations and county level recordation requirements, since the time of the establishment of the US as an independent country.<ref>Recordations in Queen Anne's County, MD date from 1634. [http://www.courts.state.md.us/clerks/queenannes/landrecords.html].</ref> That made it quite cumbersome for financial companies to develop a smooth operation of a market based on US mortgages in the early 1980s.<ref>Concern over this is nothing new, though I can find no evidence that it originated in the early '80s. [http://www.dlapiper.com/files/Publication/2df70bb9-a986-42c3-92b6-e4d91bc67225/Presentation/PublicationAttachment/42d3cd64-ac40-448c-85ce-e615c44fcc17/070011026DLA.pdf]</ref> This is because every time a financial instrument containing [[Mortgage law\|mortgage]]s is sold, various state laws may require that the sale of each such mortgage (or [[Trust deed (real estate)\|deed of trust]]) be recorded in the local county courts in order to preserve certain rights (''e.g.'', the right to foreclose non-judicially), which triggers an obligation to pay corresponding recording fees.<ref>{{cite web\|url=http://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2708&ChapterID=29 \|title=e.g. see Illinois' Rental Housing Support Program Act, 310 ILCS 7 \|publisher=Ilga.gov \|date= \|accessdate=2013-06-18}}</ref> So, the financial industry, eager to trade in [[mortgage-backed security\|mortgage-backed securities]], needed to find a way around these recordation requirements, and this is how MERS was born to replace public recordation with a private one.<ref>That MERS amounts to a private recordation system is pretty-well established. see [http://tampa-bay-real-estate.com/realtor-news/mers-misery-looms/], [http://www.avvo.com/legal-answers/what-does-mortgage-electronic-registration-systems-639162.html] [http://corvuslaw.com/faq.html]</ref> By 2007, MERS registered some two-thirds of all the home loans in the US.<ref>[http://harpers.org/archive/2012/01/page/0031 "Stop Payment: A Homeowners Revolt Against the Banks"]. ''[[Harper's Magazine]]''. January 2012.</ref>
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{{redirect|MERS|the Mers ethnic group|Mers|the coronavirus dubbed "MERS" (MERS-CoV)|Middle East respiratory syndrome coronavirus|other uses|Mers (disambiguation)}}
{{multiple issues|POV=August 2010|COI=September 2009}}
{{Infobox company
| name             =  Mortgage Electronic Registration Systems, Inc.
| logo             = [[File:Mers logo.gif]]
| caption          = 
| alt              = 
| type             = [[Privately held company]]
| foundation       = 1995
| founder          = 
| location         = [[Reston, Virginia|Reston]], [[Virginia]], United States
| locations        = 
| area_served      = United States
| key_people       = 
| industry         = [[Financial services]]
| products         = MERS System, MERS eRegistry, MERS Commercial
| services         = 
| revenue          = 
| operating_income = 
| net_income       = 
| aum              = 
| assets           = 
| equity           = 
| owner            = 
| num_employees    = 
| parent           = MERSCORP, Inc.
| divisions        = 
| subsid           = 
| homepage         = [http://www.mersinc.org/ mersinc.org]
}}

'''Mortgage Electronic Registration Systems, Inc. (MERS)''' is an American [[privately held company]] that operates an electronic registry designed to track servicing rights and ownership of [[mortgage loan]]s in the United States.<ref>{{cite web|url=http://www.mersinc.org/about-us/about-us|title=MERS: About Us|year=2013|accessdate = 2013-03-28}}</ref>  MERS is owned by [[holding company]] '''MERSCORP, Inc.'''

The real estate  law and real estate transactions in the US are subject to state regulations and county level recordation requirements, since the time of the establishment of the US as an independent country.<ref>Recordations in Queen Anne's County, MD date from 1634. [http://www.courts.state.md.us/clerks/queenannes/landrecords.html].</ref> That made it quite cumbersome for financial companies to develop a smooth operation of a market based on US mortgages in the early 1980s.<ref>Concern over this is nothing new, though I can find no evidence that it originated in the early '80s. [http://www.dlapiper.com/files/Publication/2df70bb9-a986-42c3-92b6-e4d91bc67225/Presentation/PublicationAttachment/42d3cd64-ac40-448c-85ce-e615c44fcc17/070011026DLA.pdf]</ref> This is because every time a financial instrument containing [[Mortgage law|mortgage]]s is sold, various state laws may require that the sale of each such mortgage (or [[Trust deed (real estate)|deed of trust]]) be recorded in the local county courts in order to preserve certain rights (''e.g.'', the right to foreclose non-judicially), which triggers an obligation to pay corresponding recording fees.<ref>{{cite web|url=http://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2708&ChapterID=29 |title=e.g. see Illinois' Rental Housing Support Program Act, 310 ILCS 7 |publisher=Ilga.gov |date= |accessdate=2013-06-18}}</ref> So, the financial industry, eager to trade in [[mortgage-backed security|mortgage-backed securities]], needed to find a way around these recordation requirements, and this is how MERS was born to replace public recordation with a private one.<ref>That MERS amounts to a private recordation system is pretty-well established. see [http://tampa-bay-real-estate.com/realtor-news/mers-misery-looms/], [http://www.avvo.com/legal-answers/what-does-mortgage-electronic-registration-systems-639162.html] [http://corvuslaw.com/faq.html]</ref>  By 2007, MERS registered some two-thirds of all the home loans in the US.<ref>[http://harpers.org/archive/2012/01/page/0031 "Stop Payment: A Homeowners Revolt Against the Banks"]. ''[[Harper's Magazine]]''. January 2012.</ref>

The company is the owner of record (or the owner's nominee) of the [[security interest]] arising from mortgages extended by lenders, investors and their loan servicers and recorded in county land records. By using MERS, the lenders and investors who are the real parties in interest avoid the need to file assignments in county land records, which lowers costs for lenders and, they claim, consumers by reducing county recording fee expenses resulting from real estate transfers<ref>{{cite news|url=http://www.accessmylibrary.com/coms2/summary_0286-28157446_ITM|title=MERS, Tracking Loans Electronically|accessdate= April 30, 2009 | publisher = ''[[Mortgage Banking (magazine)|Mortgage Banking]]'' (via [[AccessMyLibrary]]) | date= May 1, 2000}}</ref> and provides a central source of information and tracking for mortgage loans.<ref>{{cite web|url=http://www.kemplawoffice.com/MERS%20Summary.pdf|title=A Brief Summary of "MERS," Mortgage Electronic Registration System|accessdate= April 30, 2009}}</ref>  The company's role in facilitating mortgage trading was relatively uncontroversial in its early days a decade ago, but continued fallout from the [[subprime mortgage crisis]] has put MERS at the center of several legal challenges disputing the company's right to initiate foreclosures.  Should these challenges succeed, the US banking industry could face a renewed need for capitalization.<ref>Brady Dennis, Brady; Cha,  Ariana Eunjung (October 7, 2010). [http://www.washingtonpost.com/wp-dyn/content/article/2010/10/06/AR2010100607227.html?sid=ST2010100607251 "In Foreclosure Controversy, Problems Run Deeper than Flawed Paperwork"]. ''[[The Washington Post]]''.  Retrieved February 4, 2012.</ref>

==MERS System==
MERS began as a project in October 1993 when [[Fannie Mae]], [[Freddie Mac]], and [[Ginnie Mae]] produced a [[White Paper]] (with assistance from law firm [[Covington & Burling]]) about the need for an electronic mortgage registration system.  The MERS acronym was coined soon thereafter. The [[Mortgage Bankers Association]] got involved and MERS was incorporated in October 1995. MERS awarded a contract to [[Electronic Data Systems]] (EDS) to develop and service the technology systems, and MERS was officially launched in April 1997.<ref>{{cite web|url=http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/probpro11&div=39|title=Yes, There is life on MERS|accessdate= March 18, 2012}}</ref>

MERS was intended to serve as a nominee for real estate transactions in a way strongly analogous to how Cede & Co. serves as the nominee owner of record (i.e., the "[[street name securities|street name]]" owner) for all securities held in trust by the [[Depository Trust & Clearing Corporation]].  In the late 1960s and early 1970s, the American securities industry was drowning in paper because of the sheer complexity of physically exchanging thousands of stock certificates every day.  By "immobilizing" physical stock certificates and later replacing them altogether with book entries, DTCC enabled the development of the modern computerized securities industry.

As mortgage-backed securities grew in volume during the 1980s, it became self-evident that a similar mechanism was needed for the mortgages placed into those securities.  The underlying problem is that a mortgage loan transferred into an MBS (Mortgage-Backed Security) must become "bankruptcy remote" from the originating lender. That is, in the event the originating lender collapsed (as ultimately happened in the 2007 financial crisis to many such lenders), MBS investors demanded some kind of protection to ensure that the lender's own creditors could not "avoid" (in bankruptcy terms, rollback) the transfer of the loans into the MBS as [[fraudulent conveyance]]s and suck them back into the lender's bankruptcy estate.  The easiest way to create such protection is to simply convey the loan for [[consideration]] through three or four entities before it reaches the MBS.  As noted above, each of those conveyances had to be recorded with the relevant recorder or land registry.  With each loan requiring three or four assignments, and hundreds of mortgage loans going into each MBS, the result was that recorders were flooded with assignments, and investment banks found themselves choking on paperwork and recorders' fees.  MERS fixed this problem in that most standard loan documents were changed to name MERS as the nominal beneficiary or mortgagee of record.  This enabled lenders and investors to transfer mortgages without recording assignments in local recorders' offices and in turn avoided having to pay recording fees.

Ideally, assuming a loan is properly paid back on time, a MERS loan needs only two documents to be recorded: the original mortgage or deed of trust naming MERS, and a reconveyance of the mortgage or deed of trust back to the borrower (thus merging legal and equitable title). If all entities along the way are MERS members, then all intermediate transfers between those points are tracked only on MERS, and the entity who holds the loan at the end merely records the reconveyance as an agent for MERS.  (Notice how MERS is ''both'' an agent for the original lender and then the final lender acts as an agent for MERS; this is why MERS' critics frequently attack it as "two-faced.")  If the borrower defaults, the loan servicer will record an assignment on behalf of MERS to the [[real party in interest]] (i.e., an investment bank in its capacity as trustee for a MBS) and initiate [[foreclosure]]. Whereas before MERS that last assignment would always have been recorded at the time the MBS was created, MERS enabled banks to avoid having to record it unless and until (1) foreclosure became necessary or (2) the loan was sold by the MBS trustee to an entity outside of the MERS System.  If the loan performs to the very end, the assignment never needs to be recorded.

MERS serves several other purposes. It enables consumers, title companies and other real estate professionals to easily identify the current holders of registered mortgages and obtain discharges despite any transfers of the mortgages or mergers or acquisitions of the lenders and investors in interest that may otherwise make it difficult to trace ownership. Information contained in the MERS System can help to identify possible mortgage fraud involving the identity of a prospective buyer and owner-occupancy issues. The centralized database of MERS can also help detect property flipping schemes and purchases.

== Mortgage Identification Number (MIN) ==
Originated by MERS, the Mortgage Identification Number (MIN) is a unique 18-digit number used to track a mortgage loan throughout its life, from origination to securitization to payoff or foreclosure.<ref>{{cite web|url=http://www.mortgage-technology.com/newsletter/garritano/?story_id=848|title=Don't Discount The MIN Number|accessdate= April 30, 2009}}</ref>..

== ServicerID ==
Through MERS ServicerID, homeowners can search for their mortgage servicer, regardless of whether the mortgage has changed hands since the loan was originated.  By identifying the loan servicer, homeowners may seek to identify their lender to initiate negotiations for revised mortgage terms and take actions that can avoid foreclosure.<ref>{{cite web|url=http://www.mersinc.org/homeowners/index.aspx|title=Welcome to MERS for Homeowners|accessdate= April 30, 2009}}</ref>

== The MERS eRegistry ==
The MERS eRegistry is a system of record that identifies the owner (Controller) and custodian (Location) for registered eNotes.<ref>{{cite news|url=http://www.accessmylibrary.com/coms2/summary_0286-21508423_ITM|title=MERS eRegistry Provides a 'System of Record' for Registered eNotes|accessdate= April 30, 2009 | publisher = ''[[Mortgage Line]]'' (via [[AccessMyLibrary]]) | date= June 2, 2004}}</ref> Built by MERS with the endorsement of the [[Mortgage Bankers Association]] (MBA) and launched in 2004, the MERS eRegistry satisfies the "safe harbor" requirements of E-SIGN and UETA legislation.<ref>{{cite web|url=https://www.alta.org/publications/titlenews/04/04_03.cfm|title=The Promise of eNotes: Fact or Fairy Tale?|accessdate= April 30, 2009}}</ref> Both [[Fannie Mae]]<ref>{{cite web|url=https://www.efanniemae.com/sf/guides/ssg/relatedsellinginfo/emtg/pdf/emortgagedeliveryguide.pdf|title=Guide to Delivering eMortgage Loans to Fannie Mae, Version 2.5|accessdate= April 30, 2009}}</ref> and [[Freddie Mac]]<ref>{{cite web|url=http://www.mortgagebankers.org/files/Conferences/2006/LegalIssuesInMortgageTechnology2006/20f10GSEUpdateandMERSMichaelGordon.pdf|title=The Freddie Mac eMortgageHandbook: Instructions for Climbing eMortgage Mountain While Avoiding the Slippery Slopes|accessdate= April 30, 2009}}</ref> require the registration of eNotes on the MERS eRegistry before they are eligible for purchase.

== MISMO and MERS ==
In February 2009, MERS was selected to manage the day-to-day operations of the Mortgage Industry Standards Maintenance Organization ([[MISMO]]), although the MBA was to continue its full control over MISMO.

==2010 foreclosure crisis==
{{undue-section|date=August 2012}}
{{main|Foreclosure crisis}}

=== Litigation and major legal decisions ===

====''Mortgage Electronic Registration Systems, Inc. v. Lisa Marie Chong, et al.'' (United States District Court, District of Nevada)====
On December 4, 2009, Judge Dawson found that "MERS provided no evidence that it was the agent or nominee for the current owner of the beneficial interest in the note, it has failed to meet its burden of establishing that it is a real party in interest with standing."  He issued his decision in 5 of the 18 cases (In re Chong, In re Pilatich, In re Cortes, In Re Medina and In re O’Dell) on appeal but declined to hold that "MERS would not be able to establish itself as a real party in interest had it identified the holder of the note or provided sufficient evidence of the source of its authority."<ref>{{cite web|url=http://www.scribd.com/doc/23828361/Mortgage-Electronic-Registration-Systems-Inc-Appellant-V-Lisa-Marie-Chong-Lenard-e-Schwartzer|title=MERS, Inc. v. Lisa Marie Chong, et. al. Order in the U.S. District Court of the Nevada|accessdate= January 25, 2010}}</ref>

====''Cervantes v. Countrywide Home Loans Inc.'' (United States District Court, District of Arizona)====
On September 24, 2009, the U.S. District Court for the District of Arizona, in ''Cervantes v. Countrywide Home Loans, Inc., et al.'', dismissed all federal and state law claims made by three borrowers in a complaint filed against a group of defendants that included MERS. The court discussed whether MERS was a proper beneficiary but only in the context of whether its involvement constituted the tort of fraud on the borrowers.  The court found the mere use of MERS was not common law fraud on the borrowers, finding that "Plaintiffs have failed to allege what effect, if any, listing the MERS system as a 'sham' beneficiary on the deed of trust had upon their obligations as borrowers."<ref>[http://www.ballardspahr.com/alertspublications/legalalerts/~/media/Files/Alerts/2009-10-09_MERSMortgageRecordation.ashx].</ref>

The U.S. Court of Appeals for the Ninth Circuit affirmed the trial court's judgment in favor of MERS in a published opinion filed on September 7, 2011.<ref>''Cervantes v. Countrywide Home Loans, Inc.'', 656 F.3d 1034, 1041 (9th Cir. 2011).</ref>  The Court ruled that a borrower had no basis to challenge the standing of an entity like MERS.  It also, however, drew attention to a legal reference book's footnote that such a borrower still had a remedy by suing to have the trustee's sale set aside.

====''Mortgage Electronic Registration Systems, Inc. v. Revoredo, et al.'' (Florida Third District Court of Appeals) ====
Both the 3rd District Court of Appeals in Miami and the 2nd District Court of Appeals in Lakeland held that MERS can foreclose. Senior Judge Alan R. Schwartz noted the decision was based in part in the changes in finance and technology over time. "The problem arises from the difficulty of attempting to shoehorn a modern innovative instrument of commerce into nomenclature and legal categories which stem essentially from the medieval English land law," Schwartz wrote.<ref>[http://www.law.com/jsp/article.jsp?id=1185883306599].</ref>

A related Florida case is BONY Mellon v. Pino.  After homeowner Pino had established that bank paperwork was defective, BONY moved to dismiss its own suit, presumably intending to remedy the paperwork and then start a second suit for foreclosure, Florida being a judicial foreclosure state.  Pino challenged the bank's right to dismiss its own suit in such a way.  As the case neared a hearing at the Florida supreme court, the parties settled.  Days later the bank recorded notice at the country recorder that Pino was now the free and clear owner of his house.  In other words, the bank let go of its claim, presumably worth many thousands of dollars, to Pino's house, because bank attorneys believed they were likely to lose at the state supreme court, and thus establish a precedent that could cost them a lot of money.  Avoiding the precedent was worth more than the lost money lent to Pino.  In spite of the bank's action, the court decided to hear the matter to rule on the propriety of the banks "dismiss-fix-sue again" approach. (Brittany Davis, Miami Herald blog, May 10, 2012)

====''Jewelean Jackson, et. al. v. Mortgage Electronic Registration Systems, Inc.'' (Minnesota Supreme Court)====
On August 14, 2009, the [[Minnesota Supreme Court]] ruled that MERS could foreclose under state law as the mortgagee of record.<ref>[http://www.startribune.com/business/53186517.html].  ''[[Star Tribune]]''.</ref>

A [[class-action lawsuit]] was filed by homeowners in [[Delaware]] to hold MERS responsible for fraudulent fees on foreclosures filed by MERS.<ref name=nyt>{{cite news|url=http://www.nytimes.com/2009/04/24/business/24mers.html?ref=business|title=Tracking Loans Through a Firm That Holds Millions|work= [[The New York Times]]|date=April 23, 2009|first=Mike|last=McIntire|accessdate= December 7, 2010}}</ref>

Homeowners have argued in court that their homes could not be foreclosed because MERS deeds of trust were unlawful.<ref>[http://www.kolotv.com/home/headlines/42938942.html].  [[KOLO-TV]].</ref> In other cases, state appellate courts have held that MERS is permitted to foreclose mortgage liens when it is the holder of the note and mortgage.

====''Landmark Nat'l Bank v. Kesler'' (Kansas Supreme Court)====
On August 28, 2009, the [[Kansas Supreme Court]] in ''[[Landmark National Bank v. Kesler]]'', 2009 Kan. LEXIS 834 (Aug 28, 2009), issued a decision involving MERS that focused on finality of judgments. MERS's involvement with this case arose from the fact that the company did not receive notice of a foreclosure action even though MERS was the mortgagee of record on a junior lien. In the opinion, the court noted that "[e]ven if MERS was technically entitled to notice and service in the initial foreclosure action—an issue that we do not decide at this time—we are not compelled to conclude that the trial court abused its discretion in denying the motions to vacate default judgment and require joinder of MERS…."  The case did not affect MERS's standing to foreclose and the company is entitled to receive notice of legal actions when MERS is the mortgagee.<ref>[http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/98489.htm].</ref>  The court concluded that MERS had not publicly recorded the chain of title with the relevant registers of deeds in counties across Kansas. The judges determined that a mortgage contract consists of two documents: a deed of trust (which secures the property as collateral) and the promissory note (which indents the borrower to the lender), and determined that ''"in the event that the mortgage loan somehow separates interests of the note and the deed of trust... with the deed of trust lying with some independent entity... the mortgage may become unenforceable."''<ref>[http://harpers.org/archive/2012/01/page/0032 "Stop Payment: A Homeowners Revolt Against the Banks"]. ''[[Harper's Magazine]]''. January 2012.</ref>

On April 30, 2010, a Kansas appellate court in ''MERS, Inc. v. Graham'', 44 Kan. App. 2d 547, 2010 WL 1873567, at **4-**5, interpreted ''Kesler'' to mean that MERS in fact does not have standing to foreclose on a mortgage in Kansas where there is no mention of MERS in the promissory note, MERS acts solely as a "nominee" for the lender, and there is no evidence that the promissory note has been assigned to MERS or that MERS otherwise possesses an interest in the promissory note.

====MERSCORP, Inc., RESPA Litigation (United States Court of Appeals for the Fifth Circuit)====
In 2008, the [[United States Court of Appeals for the Fifth Circuit]] dismissed a multi-district class action lawsuit against MERS. The plaintiffs alleged that a small fee charged by mortgage lenders, which was then paid to MERS, violated provisions in the Real Estate Settlement Procedures Act (RESPA). The plaintiffs also argued that MERS unfairly received business referrals from the mortgage lenders.  However, the Circuit Judges held that "In exchange for the fee, MERS performed the service of being the permanent record mortgagee in the public land records..." Plaintiffs' complaint was dismissed by the appellate court for failure to state a claim under RESPA.<ref>{{cite web|url=http://vlex.com/vid/knighton-vs-merscorp-inc-50288166|title=Knighton vs. Merscorp Inc Opinion in the 5th Circuit U.S. Court of Appeals|accessdate= January 25, 2010}}</ref>

====District of Columbia Attorney General's Enforcement Statement====
On October 27, 2010, DC Attorney General Peter Nickels issued a statement which concludes that "a foreclosuring may not be commenced against a D.C. homeowner unless the security interest of the current noteholder is properly supported by public filings with the District's Recorder of Deeds."<ref name=wp>{{cite news|title=If You're Facing Foreclosure in D.C., Relief Might Be Possible|first=Benny|last=Kass|date=November 6, 2010|work= [[The Washington Post]]|page=E1}}</ref> So in Nickels' view, subsequent transfers of the mortgage on MERS's records will not count unless they were also recorded in D.C.

====''Gomes v. Countrywide Home Loans'' (California Court of Appeal for the Fourth Appellate District, Division One)====
On February 18, 2011, the California Court of Appeal for the Fourth Appellate District affirmed the sustaining of a [[demurrer]] without leave to amend. In an opinion by Justice Joan Irion, the court ruled in favor of MERS in two ways: (1) California's nonjudicial foreclosure statutes did not expressly or [[implied cause of action|impliedly allow a lawsuit]] simply to determine whether the party initiating a foreclosure was authorized to do so; and (2) even if they did, the plaintiff consented to the use of MERS to initiate the foreclosure when he signed the deed of trust.<ref>''Gomes v. Countrywide Home Loans'', 192 Cal. App. 4th 1149 (2011).</ref>  ''Gomes'' expressly cited to and relied upon the state supreme court's 2010 decision in ''Lu v. Hawaiian Gardens Casino, Inc.'',<ref>''Lu v. Hawaiian Gardens Casino, Inc.'', 50 Cal. 4th 592, 113 Cal. Rptr. 3d 498, 236 P.3d 346 (2010).</ref> which clarified that a certain conservative method of statutory analysis (first articulated by Associate Justice [[Frank K. Richardson]] in 1979 and adopted by a majority of the court in a 1988 opinion by Chief Justice [[Malcolm M. Lucas]]) applies to ''all'' California statutes, not just the California Insurance Code.  Thus, if the California Legislature has not expressly written a [[cause of action]] into a statute, it simply does not exist. The [[Supreme Court of California]] denied Gomes's petition for review on May 18, 2011.  Gomes' attorney then filed a petition for [[writ of certiorari]] in the [[U.S. Supreme Court]] in which he attempted to challenge MERS on vaguely articulated due process federal constitutional grounds not previously raised in the lower courts. However, he failed to challenge the constitutionality of the California rule for finding an implied cause of action, which would likely have failed anyway, as the federal rule for finding an implied cause of action is nearly identical.  The high court denied the petition on October 11, 2011.

==== In re Agard (U.S. Bankruptcy Court, Eastern District of New York) ====
On February 10, 2011, the U.S. Bankruptcy Court for the Eastern District of New York considered a motion for relief from the bankruptcy stay brought by U.S. Bank as the trustee of a securitization trust.  U.S. Bank claimed the right to foreclose on the debtor's mortgage in part because of purported assignment of the mortgage from MERS.  The court found itself constrained by the [[Rooker-Feldman doctrine]] to give effect to a prior state-court judgment of foreclosure, but went on to consider several arguments MERS advanced about its legal status and authority, noting that it had held off on deciding dozens of additional cases until those matters were clarified.  The court found that MERS had no power as an agent to assign the mortgage under its rules, its membership agreement, or the terms of the mortgage itself.  The court also found that MERS had no power as the mortgagee of record to assign the mortgage:  "MERS's position that that it can be both the mortgagee and an agent of the mortgagee is absurd, at best."

The court observed,
{{quote|MERS and its partners made the decision to create and operate under a business model that was designed large part to avoid the requirements of the traditional mortgage recording process. The Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.<ref>{{cite web|url=http://stopforeclosurefraud.com/2011/02/12/ny-bk-court-dissects-mers-inconsistent-distortion-in-re-ferrel-l-agard/|title=In re Agard, Bankr. E.D.N.Y.|accessdate= May 12, 2011}}</ref>}}

====''Residential Funding v. Saurman'' (Michigan Supreme Court)  ====
In April 2011, in ''Residential Funding v. Saurman'', the [[Michigan Court of Appeals]] decided two consolidated cases holding that MERS did not have standing to foreclose non-judicially pursuant to MCL 600.3204(1)(d) because it did not actually own any interest in the debt.<ref>{{cite web|url=http://stopforeclosurefraud.com/2011/04/22/michigan-court-of-appeals-rules-consolidates-2-cases-mers-strawman-has-no-authority-to-foreclose/|title=MERS 'Strawman' Has No Authority To Foreclose}}</ref> The [[Michigan Supreme Court]] reversed the decision in an order November 16, 2011, finding that MERS is the owner of an interest in the mortgage because "[MERS'] contractual obligations as mortgagee were dependent upon whether the mortgagor met the obligation to pay the indebtedness which the mortgage secured."  However, the court clarified that MERS's status as an "owner of an interest in the indebtedness" does not equate to an ownership interest in the note."

On November 16, 2011, the Michigan Supreme Court, understanding the urgency and potential fallout of this matter, issued a peremptory order, in lieu of granting the appeal, and reversed the Court of Appeals judgment.  (Residential Funding Co, LLC v Saurman, 2011 WL 5588929 (Mich, November 1, 2011).  The court agreed with the dissenting Court of Appeals opinion, "pursuant to MCL 600.3204(1)(d), Mortgage Electronic Registration System (MERS) is the 'owner . . . of an interest in the indebtedness secured by the mortgage at issue in each of these consolidated cases' because '[MERS] contractual obligations as the mortgagee were dependent upon whether the mortgagor met the obligation to pay the indebtedness which the mortgage secured.'"  The Court clarified that "MERS status as an 'owner of an interest in the indebtedness' does not equate to an ownership interest in the note.  Rather, as a record-holder of the mortgage, MERS owned a security lien on the property, the continued existence of which was contingent upon the satisfaction of the indebtedness." This interest in the indebtedness . . . authorized MERS to foreclosure by advertisement under MCL 600.3204(1)(d)."  (emphasis added). 
 
The court's interpreted MCL 600.3204(1) as inclusive rather than exclusive.  The court held those with an "interest in the indebtedness" includes mortgagees of record (such as MERS) and constitutes a category of parties entitled to foreclose by advertisement, along with those who "own the indebtedness" and those who "act as the servicing agent of the mortgage."

==== ''Calvo v. HSBC'' (Court of Appeals of California, Second District, Division Eight) ====
On September 12, 2011, the California Court of Appeal for the Second District said the complaint (an alleged violation of Section 2932.5 of the California Code which requires the assignee of a mortgagee to record an assignment before exercising a power to sell real property) was irrelevant as it applied only to mortgages, not to deeds of trust.<ref>{{cite web|url=http://www.mortgagenewsdaily.com/09192011_mers_foreclosure_law.asp|title=Two Courts Uphold MERS Foreclosure Rights | publisher = [[Mortgage News Daily]]}}</ref>

==== ''Robinson v. Countrywide'' (Court of Appeals of California, Fourth District) ====
On September 12, the Fourth District Court citing its own May decision in ''Gomes v. Countrywide'', stated that "the statutory scheme...does not provide for a preemptive suit challenging standing. Consequently, plaintiffs' claims for damages for wrongful initiation of foreclosure and for declaratory relief based on plaintiffs' interpretation of section 2924, subdivision (a), do not state a cause of action as a matter of law."<ref>{{cite web|url=http://www.mortgagenewsdaily.com/09192011_mers_foreclosure_law.asp#Robinson_v_Countrywide|title=Robinson v. Countrywide |publisher = [[Mortgage News Daily]]}}</ref>

==== ''Bain vs. Metropolitan Mortgage Group, Inc.'' (Washington Supreme Court) ====
In March 2012, Kristin Bain of [[Tukwila, Washington|Tukwila, WA]] filed suit against MERS (and a subsidiary) for foreclosing on her house without even disclosing the actual owner of her mortgage.<ref name=Thompson-14March2012>{{cite news|last=Thompson|first=Connie|title=State Supreme Court to rule on legality of mortgage recording system|url=http://www.komonews.com/news/consumer/State-Supreme-Court-to-rule-on-legality-of-mortgage-recording-system-142724175.html?tab=video&c=y|accessdate=17 August 2012|newspaper=KomoNews|date=14 March 2012|quote=In order to halt foreclosure and try for loan modification, Huelsman says it was necessary to first contact the actual holder of Bain's loan. The original loan holder, INDYMAC, went bankrupt during the financial crisis. FDIC, which took over the note from INDYMAC, no longer has it. Huelsman says she filed lawsuit, after lawsuit, after lawsuit, only to learn she had not named the actual holder of Bain's loan.  "We're contending that MERS made a choice along with the banks, to engage in a practice of hiding the identity of the true owner of the loan, in violation of Washington state laws, " Huelsman explained.}}</ref>

In August 2012, the [[Washington Supreme Court]] ruled with Bain, saying that MERS was not a lawful beneficiary of her deed and did not have the right to appoint trustees. The decision states: "A plain reading of the statute leads us to conclude that only the actual holder of the promissory note or other instrument evidencing the obligation may be a beneficiary with the power to appoint a trustee to proceed with a nonjudicial foreclosure on real property. Simply put, if MERS does not hold the note, it is not a lawful beneficiary".<ref>{{cite court |litigants=Bain vs. Metropolitan Mortgage Group, Inc. |vol= |reporter= |opinion= |pinpoint= |court=Wash. |date=16 August 2012 |url=http://stopforeclosurefraud.com/2012/08/16/bain-vs-metropolitan-mortgage-group-inc-wash-supreme-court-mers-cannot-be-beneficiary-in-washington-state/ |accessdate= |quote=}}</ref>

===Electronic signatures and notarizations===
Because the MERS system is electronic, it depends on the electronic storage and transmission of legal documents.  On the question of notarization of electronic signatures and the honoring of notarized signatures across state lines, the [[United States House of Representatives|US House of Representatives]] had passed bills to legalize these steps, and in 2010 the [[United States Senate|US Senate]] passed the legislation without debate. However, President [[Barack Obama]] publicly opposed the legislation on October 7, 2010.  As a result, the bill died, and state laws govern whether electronic signatures can be notarized or whether a notarized signature in one state must be accepted in another.<ref>{{cite news|url=http://www.bloomberg.com/news/2010-10-07/obama-will-veto-notary-recognition-bill-on-possible-abuse-in-foreclosures.html|work= [[Bloomberg Businessweek]] |title=Obama Rejects Notary Bill Amid Foreclosure 'Caution'|date=October 7, 2010|author= Woellert, Lorraine; Johnston, Nicholas|accessdate= December 18, 2011}}</ref>

==Controversy==
MERS generated much debate, controversy, and criticism among litigators and academics in "some of the most widely read law review articles of the past few years."<ref>{{cite journal|title=All in One Basket: The Bankruptcy Risk of a National Agent-Based Mortgage Recording System|last1=Hunt|first1=John P.|last2=Stanton|first2=Richard|last3=Wallace|first3=Nancy|journal=[[UC Davis Law Review]]|volume=46|issue=1|pages=1–63|year=2012|doi=10.2139/ssrn.1908893|url=http://lawreview.law.ucdavis.edu/issues/46/1/Articles/46-1_Hunt.pdf|ref=harv}} At fn.7.</ref> Dustin A. Zacks,<ref>[http://www.knzlaw.com/attorneys/dustin-zacks-esq Dustin A. Zacks, Esq.].</ref> for example, criticized MERS for taking directly inconsistent positions in various courts around the country.<ref>{{cite journal|title=Standing in Our Own Sunshine: Reconsidering Standing, Transparency, and Accuracy in Foreclosures|first=Dustin A.|last=Zacks|journal=[[Quinnipiac Law Review]]|volume=29|issue=3|year=2011|pages=551–610|ssrn=1958645|ref=harv}} At pp. 586-589.</ref>  Zacks' article found favor with the ''Bain'' Court which cited him for the proposition that "MERS's officers often issue assignments without verifying the underlying information, which has resulted in incorrect or fraudulent transfers."<ref>[http://www.leagle.com/xmlResult.aspx?xmldoc=In%20WACO%2020120816D84.xml&docbase=CSLWAR3-2007-CURR  Bain v. Metropolitan Mortg. Group, Inc.], 285 P.3d at fn. 18.</ref>  Professor Christopher Peterson<ref>[http://today.law.utah.edu/2012/05/peterson-to-join-new-federal-consumer-financial-protection-bureau/ Peterson to Join New Federal Consumer Financial Protection Bureau].</ref> has similarly argued that MERS is disengenuous in simultaneously claiming to be the mortgagee and the nominee/agent of the lender or trustee.<ref>{{cite journal|title=Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory|first=Christopher Lewis|last=Peterson|journal=[[William & Mary Law Review]]|volume=53|issue=1|pages=111–161|year=2011|ssrn=1684729|url=http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3399&context=wmlr|ref=harv}}</ref>  Peterson likened this alleged duplicity to being akin to the two-faced Roman God [[Janus]],{{sfn|Peterson|2011|p=113}} while Zacks compared MERS to a "creature more akin to a many-tentacled squid."{{sfn|Zacks|2011|p=585}} Peterson's articles on MERS,<ref>{{cite journal |title=Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System|first=Christopher Lewis|last=Peterson|journal=[[University of Cincinnati Law Review]]|volume=78|issue=4|year=2010|pages=1359–1407|ssrn=1469749}}</ref> which also criticize MERS for its allegedly harmful effect on the integrity and transparency of public recording, have been cited by countless anti-MERS litigants<ref>[http://www.leagle.com/xmlResult.aspx?xmldoc=In%20WACO%2020120816D84.xml&docbase=CSLWAR3-2007-CURR Bain], 285 P.3d at fn. 13 (noting National Consumer Law Center Amicus citation.)</ref> and in decisions both adverse and favorable to MERS.<ref>[http://www.leagle.com/xmlResult.aspx?xmldoc=In%20WACO%2020120816D84.xml&docbase=CSLWAR3-2007-CURR Bain], citing approvingly; [http://www.flta.org/Resources/Documents/Govt%20Affairs%20Committee/Fuller%20v%20MERS%20order%20of%20dismissal.pdf Fuller v. Mortgage Electronic Registration Systems, Inc.], 3:11-cv-1153-J-20MCR at 2-3 (M.D. Fla. June 27, 2012), disagreeing with Peterson's ultimate arguments regarding MERS' legality.</ref>

Other academics have criticized MERS on the grounds that its nominal ownership of millions of home loans poses a disastrous risk for mortgage investors should MERS ever declare bankruptcy.  Such a bankruptcy could mean that mortgages would "pass into the company's bankruptcy estate and become available to satisfy creditors' claims."{{sfn|Hunt|Stanton|Wallace|2012|p=37}} One law professor even suggested scrapping the MERS system entirely, replacing it with an entirely new national recording system.<ref>{{cite journal|title=Foreclosures and the Failure of the American Land Title Recording System|first=Tanya D.|last=Marsh|journal=[[Columbia Law Review]]|volume=111|issue=1|year=2011|pages=19–26|doi=10.2139/ssrn.1737857}}</ref>

==References==
{{cleanup-bare URLs|date=February 2012}}
{{Reflist|30em}}

== External links ==
* [http://www.mersinc.org/ mersinc.org], the company's official website
* [http://www.mers-servicerid.org/ MERS ServicerID]
* Donald J. Kochan, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2238926 ''Certainty of Title: Perspectives after the Mortgage Foreclosure Crisis on the Essential Role of Effective Recording Systems''], {{smallcaps| 66 Ark.L. Rev. 267}} (2013). 
* {{cite web |url=http://counterpunch.org/brown08192010.html |author =[[Ellen Brown]] |title=A Homeowners' Rebellion: Could 62 Million Homes be Foreclosure-Proof? |work=
[[CounterPunch]] |date= August 19, 2010}}

{{DEFAULTSORT:Mers}}
[[Category:1995 establishments in the United States]]
[[Category:Companies based in Reston, Virginia]]
[[Category:Companies established in 1995]]
[[Category:Mortgage-backed security]]
[[Category:Mortgage industry of the United States]]
[[Category:Privately held companies based in Virginia]]

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