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Backgrounder: A Closer Look at MERS, the Industry’s Controversial Mortgage Clearinghouse

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Yoshikazu Tsuno/AFP/Getty Images file photo

As we’ve noted in several posts, one player that has been featured in the foreclosure scandal and is currently under federal investigation is the Mortgage Electronic Registration System, or MERS.

Despite the fact that MERS keeps electronic records on about half of all home mortgages in the country, the system is hardly a household name. The New York Times published a lengthy piece about MERS over the weekend, the Washington Post has also written about it, as have ProPublica and other outlets. But given the many questions surrounding this creation of the mortgage banking industry, it’s worth reviewing what we know about what MERS was intended to do, how it works and why the controversy surrounding it has grown in the wake of the foreclosure scandal.

Origins of MERS

MERS is a confidential electronic registry that banks helped create in 1997 in order to keep track of mortgage paperwork. As we noted in our primer on the foreclosure scandal players, MERS saved the banks time and money by providing a private, electronic alternative to the public system used by local government recorders. By using the MERS registry, they largely avoided the recording fees.

Local government offices play important roles in recording changes in land ownership, the same way they record births, marriages, and other essential records. Having a public entity holding onto original documents is handy, after all—for instance, if you can’t find your marriage license, you can request a copy from the county you were married in. Or if you need those documents authenticated, the government can help do that too.

But for Fannie Mae, Freddie Mac and the banks, the local government recorders weren’t speedy enough—especially as the mortgage industry moved into the business of securitization, or bundling and selling mortgages. To facilitate securitization, they created MERS, a private database that relied on its members to enter data about mortgage transfers on their own.

How MERS works as recordkeeper

The creation of this system allowed mortgage companies to list MERS as the proxy for the true mortgage holder in local government records and to record subsequent changes of ownership in the MERS system only. Here’s what one expert told us about how it works:

“It’s like a Microsoft Excel spreadsheet, only bigger. It doesn’t have images of documents, it doesn’t have signatures in it. It doesn’t have copies of original documents,” explained Christopher Peterson, a law professor at the University of Utah who has written several research papers on MERS.

A member of the MERS system can put information in the database “if it feels like it,” Peterson said. “MERS uses the word ‘track,’ they say they track servicing rights or ownership rights, but that’s not really what they do. They’re more of a passive information receptacle.”

MERS faces questions about accuracy of records

A spokeswoman for Fannie Mae told the Times that the company would “never rely on [MERS] to find ownership” of a loan. More on the accuracy of MERS records, from the Times:

Alan M. White, a law professor at the Valparaiso University School of Law in Indiana, last year matched MERS’s ownership records against those in the public domain.

The results were not encouraging. “Fewer than 30 percent of the mortgages had an accurate record in MERS,” Mr. White says. “I kind of assumed that MERS at least kept an accurate list of current ownership. They don’t. MERS is going to make solving the foreclosure problem vastly more expensive.”

Despite its reliance on members to accurately input its content, MERS maintains that its system is accurate, accountable and transparent.

“With the MERS System, mortgage data is more accurate and title information more reliable,” the company has said.

MERS’ muddled role in foreclosures

Aside from the debate over MERS’ role as a recordkeeper, another controversy has long plagued the company: In some cases, banks have tried to foreclose under MERS’ name.

Given that MERS doesn’t actually own the mortgages (or hold the note), judges and attorneys have frequently questioned whether it has the legal standing to enforce these foreclosures. Critics have also argued that MERS makes it harder for homeowners to fight foreclosures because it shields the true owner of the mortgage in public records.

While MERS maintains on its website that it has the right to foreclose on behalf of the true owner of the mortgage, last month it seemed to back off from that position when it announced a proposed rule change that would “require Members not to foreclose in MERS’ name.” What this means, practically speaking, is that banks will have to go through an extra step of using a “certifying officer” to sign the mortgage over from MERS to the true owner in order to foreclose.

The additional step doesn’t necessarily mean that the information undergoes an additional layer of review, however. Those “certifying officers,” as depositions have revealed, are in many cases the same bank employees accused of “robo-signing” foreclosure documents en masse without due diligence or verification of the documents they were assigning.

One Chase employee testified that she was certified to sign as both a MERS vice president and assistant secretary, but she did not attend any MERS board meetings, did not report to anyone at MERS, had never spoken to anyone at MERS and did not know where the MERS headquarters were. As part of the changes announced last month, MERS also announced an “enhanced” process for certifying these officers.

With courts split, MERS’ future uncertain

Court cases across the country have both upheld and rejected the legitimacy of MERS’ business practices, depending on each state's recording laws and foreclosure laws.

According to the Times, the Ohio Secretary of State has asked federal prosecutors to investigate MERS’ signing officers. In Massachusetts and North Carolina, local registers of deeds called on the states’ attorneys general to investigate the allegation that MERS deprived local governments of millions in revenue by allowing major mortgage companies to sidestep the fees paid to government recorders.

Last month in New York, a federal bankruptcy judge concluded that MERS lacked the legal standing to transfer the ownership of mortgages on behalf of the banks. (The Missouri Court of Appeals ruled similarly in 2009.) The judge, recognizing that his decision would have a “significant impact,” criticized MERS’ business model, saying it “was designed in large part to avoid the requirements of the traditional mortgage-recording process.”

The Oregonian reported today that in Oregon, where state law requires that mortgage assignments be recorded with county recorders, federal judges have halted some foreclosures and questioned whether the use of MERS caused lenders to break the law. One attorney for the lenders told the Oregonian, “A lot of us are questioning whether there is a solution.”

In California, a state appeals court last month validated the role of MERS in foreclosure proceedings: “Under California law,” wrote the judge, “MERS may initiate a foreclosure as the nominee, or agent, of the noteholder.” The company has also won favorable rulings in recent cases in New Hampshire, Georgia, Massachusetts and Kansas.

Banks have warned in their regulatory filings that, given the legal questions concerning MERS, they could face fines for using the MERS database to foreclose in lieu of original documents, Bloomberg has noted.

MERS has for months been the subject of a joint investigation by federal bank regulators at the Office of the Comptroller of the Currency, the Federal Reserve, the Federal Deposit Insurance Corporation and the Federal Housing Finance Agency.

As the Post noted in December, then-Merscorp president R.K. Arnold testified before Congress that MERS is “based on sound legal principles.” Arnold recently retired as president and CEO of MERS.

MERS and the industry are well connected in Washington

A quick look at its lobbying activity shows that MERS has spent more than a million dollars on lobbying since 2009, and OpenSecrets points out that it has retained several big-name lobbyists. The Post has noted, however, that while MERS has kept a relatively low profile, the financial services industry has been lobbying aggressively to defend it and to push legislation that would affirm MERS’ legality.

What about Chain of Assignment? What about proving the link between the original lender and now MERS? Is it just a matter, say, in California, that MERS “says” they are the agent and so be it? Heck I could “say” I was the holder of hundreds of mortgages then. Why would the law be any different for me?

acmodspecialists

March 7, 2011, 10:54 p.m.

MERS = Biggest ponzy scheme in US history

It is imperative that the transparency and integrity is restored to the US securities trading systems.  This has been the characteristic that attracted investors across the world to our security exchanges.  Unfortunately, the major industry players are undermining the integrity of their own institutions.  My personal feelings are that most of the securities industry have great institutions but they need a supportive hand from the US Government regulators to maintain the fairness in the system.  It would be great if MERS could perform electronic asset transfers.

Insightful article.

acmodspecialists

March 8, 2011, 2:20 a.m.

Amid a snowballing foreclosure fraud crisis, President Obama yesterday blocked legislation that critics say could have made it more difficult for homeowners to challenge foreclosure proceedings against them.
The bill, titled The Interstate Recognition of Notarizations Act of 2009, passed the Senate with unanimous consent and with no scrutiny by the DC media. In a maneuver known as a “pocket veto,” President Obama indirectly vetoed the legislation by declining to sign the bill passed by Congress while legislators are on recess.
The swift passage and the President’s subsequent veto of this bill come on the heels of an announcement that Wall Street banks are voluntarily suspending foreclosure proceedings in 23 states.
By most reports, it would appear that the voluntary suspension of foreclosures is underway to review simple, careless procedural errors. Errors which the conscientious banks are hastening to correct.
But those errors go far deeper than mere sloppiness.  They are concealing amassive fraud.
They cannot be corrected with legitimate paperwork, and that was the reason the servicers had to hire “foreclosure mills” to fabricate the documents.
These errors involve perjury and forgery—fabricating documents that never existed and swearing to the accuracy of facts not known. 
CRIMINAL Behavior they should all be in Jail

I amrather pleased I am not American. With Clinton asking billions to improve international news coverage to match Aljazeera & RT whilst the same mob are spending billions on trying to get Wikileake to SHUT UP? Who is out to grag the true Americans home? Better find out!  Islam Example:  Mortgage: Muslim style; A domestic property is on sale. The bank assess value. Purchace price loaned to home buyer WITHOUT INTEREST OVER 20 YEARS.No parasitic converancers, A property valued at 100,000 today will escalate over the 20 years, if the owner decides to sell, he sells at market price, which will under nomal circumstances give him a pension contribution? Keep the rats out of your home!

Ms. Wang:

You and ProPubluca are still missing the point. The banking industry STOLE trillions from state governments by illegally avoiding registration fees and title transfer fees.

There is no question that this was done and Federal Court across this country have ruled that way.

Without this theft of the people’s money from state government function Wisconsin, New Jersey, Illinios and California would not have the financial issues they now have or the issues would not be so severe.

Massachusetts is the only state so far that has caught on (Democrat governor and AJ that not GOP), they have lost @00 million in state funds clipped by this criminal with this xlearly illegal scheme devised by Wall Street and their friends in Washington, DC.

You have to keep pounding this until the people get the picture that they have been taken for a ride.

Step back and look at the forest. MERS was a concerted effort to cleverly rip-off the middleclass from the back door.

ProPublica has to wake up and smell the coffee.

acmodspecialists

March 8, 2011, 12:47 p.m.

And here i present….more horror stories

news.firedoglake.com/2011/03/08/where-the-proposed-foreclosure-fraud-settlement-falls-short/

MERS, as bankers convenient way to avoid liability of write downs for regulators, and jurisprudence in courts.
A Ponzi scheme from the beginning, to inflated value of mortgages, and leave a entity in some grey area of having control of mortgages.
Still no one goes to Jail, as their lobbyist buy out Legislators at State and Federal levels.

robert robillard

March 8, 2011, 4:40 p.m.

I am one of the many elderly south florida residents that was duped into a Countrywide neg-am option arm refi in 2005. I paid on time for 4 yrs.
In2009 it became clear that we could not sell our home of 23 yrs in the rapidly declining mkt. I contacted CWB for a mod & was told I must be 3 pmts late to be considered. I stopped paying in 9/09. MERS is my owner of record. I have been able to determine on that website that BONY Mellon holds my mortgage. Bony refuses to name the investor citing confidentiality.BOA refuses to do so also citing proprietary rights.
The Fl AG Settlement with CWB specifically states remedial action to be taken by Servicing Bank for my situation. BOA acknowledges the
settlement but lacks guidance to proceed.  They must produce the original papertrail to proceed to Foreclosure in Monroe County.
I dont think they are capable of doing so. Hence we are destined to remain in limbo in paradise lost.

In the UK there is a union,a frade, workers union and there welcome all and sundry as men
mbers. I think, you should contact GMB in london and start you own Public Protection Union and they, gmb will advise on setting up. In this way, you don’t need petitions and signatures, you get the union to tear it all down and apply LAW. As tou have a population of some 255 million Humans. The may be able to run to a $100 each per year, when the union could have an inhouse legal team to shred the mobsters or incompeyents/ I did write about the Islamics, that if a house/property is worth, hypothetically $100,000, and approved, that amount is loaned for the property, without interest over 20 years. No parasites, conveyerences or strings. When the owner sells the property at market value some years later, it contributes to his pension.Pse look into the feasabillity of a non- coruptable UNION.

Is “democracy” not a Ponzy Scheme? A Ponzy is where money is paid in, (tax) and the money benefits, in theory, are to to go to the top of the pyramid and filter down, back to the payee.Unless the gov"t has a one sided pyramid with three sides doing a Gaddaffi? Perhaps you could get a tame union to unvestigate the working that may not be workings for you.
When dealing with MER or the like, perhaps the approach should be, are you dealing with a GLOVE, and if so, whose hand is driving the glove. In otherwords, take nothing at face value and if in doubt, get the hell out.

Imagine - those foaming at the mouth for “less government”, posting hate-filled rhetoric about “liberals” and spreading ignorance across this country - are the very same people trying desperately to keep their homes from foreclosure while voting in the same soulless demons who are selling them downriver. Why oh why are so many “intelligent” americans so willing to cut off their damn noses to spite their damn faces?

How much more needs to be demonstrated before main street America gets the picture?!!  These aren’t hippies and socialists stealing America, its corporate greed and corruption.

This country is in deep trouble. For one, Obama has not been the leader for a new Washington, has not used the Presidency as a bully pulpit to push this nation into a new direction, fiscally, environmentally & politically. Maybe it’s too late. Real unemployment is probably 20% and major media is as much a Washington lacky as there ever was. Funding for NPR is going to get axed, cutting off an alternative news source that we have to have. Is America dead? Where is the sanity?

Since all this came out, I’ve been checking my house records on-line.  1.  My mortgage package has my original lender and MERS on it. 

2.  My county records office has my original lender and MERS on the deed.  THere are no additional records in my name, including assignments.  I checked. 

3.  I checked the MERS database and it lists BAC Home Loan Servicing as both my servicer and LENDER ((??!!??).

4.  And the Freddie Mac webiste proudly announces in large font that “YES, Freddie Mac owns your loan.” 

Is this my BOHICA moment?

my coment come from the heart BANK OF AMERCIA is not rhe the lender on the mortage it is First Frankin Bank . I ask for copy of the note from both they banks and was given the run around by they saying that note is in a squence of numbers and that it hard to locate so I put it to Bank Of America thats a lie My note was sole as a securtly and that they dont have the note so until They prove it no bank or trustee can forclose on my home You see I have the copy of the note Myn signiture is not on it Just my husband The had Mers er electronicy sign my name on the deed of trust and that was told the page on the copy of deed of trust was that a witness and the signiture do not match. so where do go who I speak to where do I fille a action agaist BANK OF AMERICA HELP Me Someone

my coment come from the heart BANK OF AMERCIA is not rhe the lender on the mortage it is First Frankin Bank . I ask for copy of the note from both they banks and was given the run around by they saying that note is in a squence of numbers and that it hard to locate so I put it to Bank Of America thats a lie My note was sole as a securtly and that they dont have the note so until They prove it no bank or trustee can forclose on my home You see I have the copy of the note Myn signiture is not on it Just my husband The had Mers er electronicy sign my name on the deed of trust and that was told the page on the copy of deed of trust was that a witness and the signiture do not match. so where do go who I speak to where do I fille a action agaist BANK OF AMERICA HELP Me Someone I don’t want them to win they are in the wrong

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