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Nevada Supreme Court Clears Path For MERS Related Foreclosures

by PropertyPilot on October 30, 2013

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MERS related foreclosures have been the source of a great deal of controversy, litigation and splits of authority nationwide because MERS, incorporated by banks in 1995 to facilitate the tracking, bundling and transfer of hundreds or thousands of loans into one securitized package, in the process also dispenses with the long-standing requirement that a lender file papers with a county recorder every time a loan changes hands.

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As a result, MERS’s legal standing to pursue foreclosure has faced federal and state court challenges in dozens of jurisdictions, with varying determinations.  Consumer groups and homeowner attorneys nationally have argued that MERS lacks foreclosure standing since it does not hold an interest in the loan, and have asserted as well that MERS serves to hide the identity of the actual lender, making it difficult to work out new mortgage terms.  The banking industry, on the other hand, has argued that MERS cuts administrative costs and makes loans more attractive to investors by making them easier to sell or trade, which in turn draws attracts more money into the mortgage market.
The Nevada Supreme Court, in Edelstein v. Bank of New York Mellon (accessible at http://www.nevadajudiciary.us/index.php/advancedopinions/1660-edelstein-v-bank-of-new-york-mellon-), concluded that although “when MERS is the named beneficiary and a different entity holds the promissory note, the note and the deed of trust are split, making nonjudicial foreclosure by either improper[,]” any such split is “cured when the promissory note and deed of trust are reunified[,]” which was the case in the matter before it.
Not surprisingly, bankers greeted the decision with enthusiasm and support, while borrowers attorneys expressed concern.  “I think it is good that MERS has been validated,” Nevada Bankers Association President William Uffelman said. “The whole thought behind it was bringing loan recording into the 21st century.”  Nevada, attorney, Jacob Hafter,  who argued the case for homeowner David Edelstein, said: “The court has cleared a path to begin foreclosing in a mass effort.”
http://www.lvrj.com/news/supreme-court-gives-banks-foreclosure-win-172056761.html

In a unanimous ruling, the Nevada Supreme Court agreed that hundreds of thousands of home mortgages in the state involving the Mortgage Electronic Registration System Inc. (MERS) could be put into foreclosure after technical adjustments.

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MERS related foreclosures have been the source of a great deal of controversy, litigation and splits of authority nationwide because MERS, incorporated by banks in 1995 to facilitate the tracking, bundling and transfer of hundreds or thousands of loans into one securitized package, in the process also dispenses with the long-standing requirement that a lender file papers with a county recorder every time a loan changes hands.

As a result, MERS’s legal standing to pursue foreclosure has faced federal and state court challenges in dozens of jurisdictions, with varying determinations.

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Consumer groups and homeowner attorneys nationally have argued that MERS lacks foreclosure standing since it does not hold an interest in the loan, and have asserted as well that MERS serves to hide the identity of the actual lender, making it difficult to work out new mortgage terms.  The banking industry, on the other hand, has argued that MERS cuts administrative costs and makes loans more attractive to investors by making them easier to sell or trade, which in turn draws attracts more money into the mortgage market.

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The Nevada Supreme Court, in Edelstein v. Bank of New York Mellon (accessible at http://www.nevadajudiciary.us/index.php/advancedopinions/1660-edelstein-v-bank-of-new-york-mellon-), concluded that although “when MERS is the named beneficiary and a different entity holds the promissory note, the note and the deed of trust are split, making nonjudicial foreclosure by either improper[,]” any such split is “cured when the promissory note and deed of trust are reunified[,]” which was the case in the matter before it.

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Not surprisingly, bankers greeted the decision with enthusiasm and support, while borrowers’ attorneys expressed concern.  “I think it is good that MERS has been validated,” Nevada Bankers Association President William Uffelman said. “The whole thought behind it was bringing loan recording into the 21st century.”  Nevada, attorney, Jacob Hafter,  who argued the case for homeowner David Edelstein, said: “The court has cleared a path to begin foreclosing in a mass effort.”

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