The Magic of the Mortgage Electronic Registration System: It Is and It Isn't

American Bankruptcy Law Journal,, Vol. 85, p. 230, 2011

39 Pages Posted: 29 Jul 2011 Last revised: 17 Nov 2011

David P. Weber

Creighton University - School of Law

Date Written: Augusy 30, 2011

Abstract

This essay critically examines MERS' structure which incorporates principles of dubious legality such as a theory of common agency as well as a duality of roles held by MERS. The article examines many recent decisions in state, federal and bankruptcy courts in order to identify current trends regarding MERS-related jurisprudence. The essay also provides an in-depth discussion of the historical issue of severing a promissory note and a mortgage, and how that can prove to be fatal in some cases but not others (depending especially on the forum). The article concludes with a proposal for the creation of a federal data clearinghouse akin to the EDGAR system for publicly held companies, to document ownership and transfers of mortgages and promissory notes in a secondary market.

Keywords: MERS, foreclosure, mortgage, deed of trust, title, land, lien, securitization, mortgage electronic registration system, recording, priority, standing, promissory note, nominee

JEL Classification: K11, D18, G18, G21, G28

Suggested Citation

Weber, David P., The Magic of the Mortgage Electronic Registration System: It Is and It Isn't (Augusy 30, 2011). American Bankruptcy Law Journal,, Vol. 85, p. 230, 2011. Available at SSRN: https://ssrn.com/abstract=1898306

David P. Weber (Contact Author)

Creighton University - School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402 280 3334 (Phone)

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