Washington's Highest Court Rules MERS Cannot Foreclose on Homeowners
The Washington Supreme Court ruled unanimously today that the mortgage industry's controversial document-recording system lacked authority to start out-of-court foreclosures and might have violated state consumer protection laws. ~ Brent Hunsberger
The state's highest court ruled that lenders could not foreclose on homeowners in the name of the Mortgage Electronic Registration Systems Inc. It found that MERS did not meet Washington's definition of a beneficiary and could not foreclose on behalf of a lender that holds the mortgage note.
"Simply put, if MERS does not hold the note, it is not a lawful beneficiary," the court wrote in an opinion written by Justice Tom Chambers and released today.
The Oregon Supreme Court also is considering whether MERS can be a beneficiary under Oregon law, said Rick Fernandez, an attorney in Lake Oswego whose cases are before the court.
In July, the Oregon Court of Appeals ruled that lenders could not use MERS to skirt state law requiring that all mortgage sales be recorded in county offices before launching out-of-court foreclosures.
Washington's court today also found that MERS's involvement in robo-signing mortgage documents, among other behaviors, appeared to violate Washington's Consumer Protection Act. But consumers must try such claims on a case-by-case basis, the court said
MERS was created by the mortgage industry to bundle and sell loans to investors without having to record every assignment with county clerks. It is involved in most mortgages across the country, but does not take payments from borrowers or negotiate on behalf of lenders.
MERS spokeswoman Janis Smith noted that Thursday's decision applies only to non-judicial foreclosures done outside a courtroom, the process lenders typically use. MERS voluntarily changed its rules in July 2011 to stop foreclosures in its name, she said.
Melissa Huelsman, a Seattle attorney, represented homeowner Kristin Bain in one of the cases against the court. Bain had sued Metropolitan Mortgage Group, Indymac Bank, Fidelity National Title and MERS.
Huelsman said the ruling cleared the path for homeowners to recover damages and attorneys fees from lenders found to have wrongfully foreclosed. She called the decision a victory for the rule of law.
"Too often we've seen courts twisting themselves into knots to get to a decision that's inconsistent with the statute," Huelsman said.
Attorneys said they were still evaluating how the decision impacts existing cases and already completed foreclosures.
"I would guess that lenders will approach out-of-court foreclosures involving MERS much more cautiously," Fernandez said.
Washington Attorney General Rob McKenna and the National Consumer Law Center had submitted briefs supporting the cases of Bain and homeowner Kevin Selkowitz. The Washington Bankers Association had supported MERS.
In its ruling, the court noted the confusion MERS had caused distressed homeowners who were trying to identify and negotiate modifications with the true owner of their mortgage.
"While not before us, we note that this is the nub of this and similar litigation and has caused great concern about possible errors in foreclosures, misrepresentation, and fraud," the opinion said.
"Under the MERS system, questions of authority and accountability arise, and determining who has authority to negotiate loan modifications and who is accountable for misrepresentation and fraud becomes extraordinarily difficult."
It called the debate over whether MERS could foreclose without owning the mortgage as "a simple question" under Washington law: "... if MERS never 'held the promissory note' then it is not a 'lawful beneficiary.'"
The court cited previous federal court rulings in Washington in favor of MERS as "not well taken."
The cjustices declined to evaluate the legal impact of their ruling, as U.S. District Court Judge John C. Coughenour asked them to last year when he sought their opinion.
Under the state's Consumer Protection Act, MERS's characterization of itself on deeds of trust as a beneficiary could be considered an unlawful deceptive practice, the court said.
"The fact that MERS claims to be a beneficiary, when under a plain reading of the statute it was not, presumptively meets the deception element of a CPA action," the court said.
So could MERS's participation in robo-signing mortgage documents, the court said.
"MERS's officers often issue assignments without verifying the underlying information, which has resulted in incorrect or fraudulent transfers," the court said. "Actions like those could well be the basis of a meritorious CPA claim."
The court also said MERS could not show that it acted as an agent for parties who owned Bain and Selkowitz's loans, which are often sold repeatedly to other investors. MERS also failed to identify the parties that control and are accountable for its actions, the court said.
MERS spokesman Jason Lobo said it will be able to show a trial court which lenders it represented in those cases.
Brent Hunsberger - August 17, 2012 - posted at WeeklyIntercept