MERS Litigation -- Brief of Amicus Curiae the Legal Services Center of Harvard Law School and Law Professors in Support of the Appellee

39 Pages Posted: 8 May 2015 Last revised: 1 Apr 2016

See all articles by Max Weinstein

Max Weinstein

Harvard Law School

Melanie B. Leslie

Yeshiva University - Cardozo Law School

David J. Reiss

Brooklyn Law School

Joseph William Singer

Harvard Law School

Rebecca Tushnet

Harvard Law School

Date Written: May 5, 2015

Abstract

MERS represents a major departure from and grave disruption of recording practices in counties such as Montgomery County, Pennsylvania, that have traditionally ensured the orderly transfer of real property across the country. Prior to MERS, records of real property interests were public, transparent, and provided a secure foundation upon which the American economy could grow. MERS is a privately run recording system created to reduce costs for large investment banks, the “sell-side” of the mortgage industry, which is largely inaccessible to the public. MERS is recorded as the mortgage holder in traditional county records, as a “nominee” for the holder of the mortgage note. Meanwhile, the promissory note secured by the mortgage is pooled, securitized, and transferred multiple times, but MERS does not require that its members enter these transfers into its database. MERS is a system that is “grafted” onto the traditional recording system and could not exist without it, but it usurps the function of county recorders and eviscerates the system recorders are charged with maintaining.

The MERS system was modeled after the Depository Trust Company (DTC), an institution created to hold corporate and municipal securities, but, unlike the DTC, MERS has no statutory basis, nor is it regulated by the SEC. MERS’s lack of statutory grounding and oversight means that it has neither legal authority nor public accountability. By allowing its members to transfer mortgages from MERS to themselves without any evidence of ownership, MERS dispensed with the traditional requirement that purported assignees prove their relationship to the mortgagee of record with a complete chain of mortgage assignments, in order to foreclose. MERS thereby eliminated the rules that protected the rights of mortgage holders and homeowners. Surveys, government audits, reporting by public media, and court cases from across the country have revealed that MERS’s records are inaccurate, incomplete, and unreliable. Moreover, because MERS does not allow public access to its records, the full extent of its system’s destruction of chains of title and the clarity of entitlements to real property is not yet known.

Electronic and paper recording systems alike can contain errors and inconsistencies. Electronic systems have the potential to increase the accessibility and accuracy of public records, but MERS has not done this. Rather, by making recording of mortgage assignments voluntary, and cloaking its system in secrecy, it has introduced unprecedented and perhaps irreparable levels of opacity, inaccuracy, and incompleteness, wreaking havoc on the local title recording systems that have existed in America since colonial times.

Note: Brief for The Legal Services Center of Harvard Law School and Law Professors as Amici Curiae Supporting Appellee, Montgomery County, Pennsylvania Recorder of Deeds v. Merscorp Inc., (3rd Cir. 2015) (No. 14-4315).

Keywords: MERS, foreclosure, mortgage, deed of trust, title, land, lien, securitization, mortgage electronic registration system, DTC, Depository Trust Company, chain of title, electronic recording, public records, title recording, debt collection, priority, recording, housing crisis, foreclosure crisis, fina

Suggested Citation

Weinstein, Max and Leslie, Melanie B. and Reiss, David J. and Singer, Joseph W. and Tushnet, Rebecca, MERS Litigation -- Brief of Amicus Curiae the Legal Services Center of Harvard Law School and Law Professors in Support of the Appellee (May 5, 2015). Brooklyn Law School, Legal Studies Paper No. 411. Available at SSRN: https://ssrn.com/abstract=2602929

Max Weinstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Melanie B. Leslie

Yeshiva University - Cardozo Law School ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0266 (Phone)
212-790-0205 (Fax)

David J. Reiss

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Joseph W. Singer

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Rebecca Tushnet

Harvard Law School ( email )

Cambridge, MA
United States

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