When a mortgage is sold from one bank to another, an "assignment" (a document showing that the loan has been transferred) is typically prepared and recorded in the county land records. The assignment transfers the original lender's interest under the mortgage to the new bank. Mortgage Electronic Registration System, Inc. (MERS) is a company the banking industry created to simplify this process.
MERS maintains a database that tracks mortgages for its members as they're transferred from bank to bank. By tracking loan transfers electronically, MERS eliminates the long-standing practice that the loan owner must record an assignment with the county recorder every time the loan is sold from one entity to another.
To fully understand MERS, you must understand the basic terms and documents involved in a residential mortgage transaction.
In some home loan transactions, the mortgage designates MERS as the mortgagee, solely as a nominee for the lender. These loans are called "MERS as Original Mortgagee" or "MOM" loans. In a deed of trust, MERS is designated as the beneficiary to act as the lender's nominee.
In other cases, the loan might be assigned to MERS (solely as a nominee) sometime later in its life cycle after the loan closes. MERS then tracks the loan transfers, acting as the nominee for each holder, eliminating the need for separate assignments when the loan is transferred.
Having the loan in MERS' name, as a nominee, in the land records saves time and recording costs because multiple assignments aren't necessary each time the loan changes hands.
While MERS then acts as mortgagee, solely as a nominee for the loan owner, in the county land records, it doesn't actually own the debt or hold the promissory note.
A foreclosure is either judicial or nonjudicial, depending on state law and the circumstances. In some judicial foreclosure cases in the past, MERS, solely as a nominee for the loan's owner, was named as the plaintiff in the lawsuit. And MERS was previously sometimes listed as the beneficiary, solely as a nominee for the loan owner, in nonjudicial foreclosure notices.
Courts are divided on the issue of whether MERS as a nominee may be listed as the plaintiff or beneficiary in foreclosure proceedings.
Some state courts have determined that MERS doesn't have standing to foreclose.
To file a lawsuit, a plaintiff must have legal "standing," meaning it must have a direct interest in the lawsuit's outcome. Some states have decided that only the lender (or current loan owner) has such an interest in a foreclosure. In those states, because MERS acts solely as a nominee for the lender, it can't be a plaintiff in a judicial foreclosure.
For instance, in 2010, the Maine Supreme Court held that because MERS doesn't own the promissory note, it lacks standing to begin foreclosure proceedings in that state. Consequently, MERS can't be the plaintiff in a foreclosure case in Maine.
Some nonjudicial states, like Washington, have determined that MERS has no right to foreclose in those states. The Washington Supreme Court ruled that MERS isn't considered a beneficiary under state law. So, MERS can't nonjudicially foreclose a deed of trust in that state because it doesn't own the debt.
Other states have determined that foreclosure cases may proceed in the name of MERS. For example, the Supreme Court of Minnesota decided that MERS has standing to foreclose in that state.
Also, in a case in Nevada, a homeowner's attorney argued that having MERS as a mortgagee was a fatal flaw in the mortgage process. He claimed that once a loan has a different note holder and mortgage holder, it's permanently flawed and couldn't be foreclosed. But the Nevada Supreme Court disagreed and ruled that mortgages involving MERS could be foreclosed after being assigned back to the lender.
In 2011, MERS changed its rules so that, in most cases, foreclosures may no longer be started in its name. So, before the foreclosure starts, MERS usually assigns the loan back to the lender (or the current loan owner).
In a judicial foreclosure, the lawsuit is then typically filed in the name of the lender or current loan owner. In a nonjudicial foreclosure, the lender or current owner of the loan is named as the beneficiary in the foreclosure notices.
Because MERS changed its rules in 2011, subject to a few exceptions in some states, you generally won't see any more new MERS foreclosures, even in states that previously allowed them.
If you're facing a foreclosure and you think an issue with MERS exists in your case (like MERS is the named plaintiff or you think that the servicer is using an improper, incorrect, or robosigned assignment in the process), consider talking to a foreclosure attorney.