After a North Portland rental home owned by Dawn Lind went
into foreclosure last fall, she jumped into a nationwide legal fight
that could affect millions of residential properties.
Lind, who learned the
real-estate business from the inside working as a mortgage broker for
eight years, is taking on a company critics say helped cause the housing
crisis and could now threaten the fundamentals of American property
rights—the innocuously named Mortgage Electronic Registration Systems,
or MERS.
A 46-year-old mother
of three, Lind filed suit Feb. 23 in Multnomah County Circuit Court
claiming MERS has no right to foreclose on her two-bedroom house unless
the company can prove it owns the mortgage.
Legal experts say her case is not isolated and that it could determine the fate of thousands of Oregon homes facing foreclosure.
“Collectively, that
case and cases like it are forcing accountability in the financial
system,” says Christopher Peterson, a law professor at the University of
Utah. “There’s a chance that these kinds of cases will put pressure,
both in the legislatures and in the courts, to build a law that is more
protective of borrowers in their homes.”
For Lind, the case is personal.
“I was part of the
problem. Now I want to be part of the solution,” says Lind, who recalls
signing at least one questionable loan before she was forced out of the
faltering mortgage business in January due to lack of business.
“MERS is the center of the problem,” Lind insists.
Both in court and in
past press interviews, executives at MERS have strongly rejected
allegations of wrongdoing. MERS Vice President Doug Danko declined to
comment on Lind’s case.
Based in Reston, Va.,
MERS was created in 1995 by industry insiders associated with the
Mortgage Bankers Association of America. Companies saved billions of
dollars in fees bypassing local governments by creating a private
database of property information.
MERS made it possible
to quickly bundle and transfer debt—a key to selling mortgage-backed
securities cooked up during the housing bubble. Critics say MERS was
also central in disguising the toxic nature of those assets.
Lind, who lives in
Northwest Portland, bought the house in Kenton as an investment in 2005
for $170,000. Like many homeowners, she didn’t know about MERS’s role
until foreclosure papers arrived listing MERS as “nominee” for the
lender, Greenpoint Mortgage Funding.
Lind learned MERS has
foreclosed on thousands of homes across the country—in some cases
without the proper paperwork or legal standing, according to state and
federal court rulings. Judges in Arkansas, Kansas and Maine have found
MERS lacks standing to foreclose in those states, and the company faces
lawsuits for racketeering in New York, Florida and Kentucky.
The legal problems
with MERS’s approach are twofold, observers say. First, MERS claims to
be both the mortgage owner and an agent of the mortgage holder—a claim a
New York judge last month labeled “absurd at best.” Second, the
company’s database bypasses public-recording laws in place since
colonial times.
How many properties
are affected? More than 60 million—roughly 60 percent of all mortgage
loans in America, according to Peterson.
“The entire national
economy is exposed to this one undemocratic shell company that’s
maintained and controlled for the benefit of financial institutions,”
Peterson says.
For the first time in
history, Peterson has written, Americans lack reliable records of who
owns many properties. And a string of recent legal defeats has thrown
into question whether foreclosures on those properties can hold up in
court.
“The drumbeat of
federal court cases of the last couple of months has been in favor of
the homeowners,” says Phil Querin, a Portland real-estate lawyer.
Those rulings include
a Feb. 7 decision by U.S. Bankruptcy Court Judge Frank Alley in Eugene.
Regarding a home in Southern Oregon, he ruled MERS could not foreclose
under Oregon law because the papers were never recorded.
“It sent tremors throughout the industry,” Querin says. “There were telephone conferences statewide.”
But Patrick Wade, head of the debtor-creditor section of the Oregon State Bar, says no definitive case has arisen in Oregon.
“Maybe this will be that case,” Wade says of Lind’s lawsuit seeking to stay the foreclosure on her house.
“It’s personal to me
when they’re taking advantage of so many people who don’t understand the
system,” Lind says. “That’s what bothers me the most.”
FACT: Massachusetts Attorney General Martha Coakley opened an investigation into MERS last year. In Oregon, “We are looking into MERS,” says an email from Tony Green, a spokesman for Oregon Attorney General John Kroger. “I can’t say much more than that.”
MERS has some serious problems. Unravelling it will start to get at the huge mess that was built during the housing bubble.
At the same time, I don't see what it solves, or how it is fair to a majority of homeowners, to let people like Ms. Lind keep houses they haven't paid for. It isn't even her primary residence.
MERS was created to allow the transfer of trust deeds and mortgages between beneficiaries without recording the transfer of those security instruments. It has absolutely nothing to do with who has title to the real estate, but only whether a lender can have a nominee encumber the property. The narrow legal issue is whether or not MERS can seek to foreclose a defaulted loan in its own name. MERS holds close to 60% of all real estate loans in the country and is truly "too big to fail". Any definitive ruling that MERS can neither foreclose in its own name, or allow the underlying beneficiary to foreclose will make the 2008 economic collapse and subsequent bailouts look like child's play. Obviously, someone who benefited from the proceeds of a loan which was subsequently placed in MERS name, lacks any moral or equitable credibility if they think they can now call "king's 'x'", and avoid any obligations because the assignment to MERS was not recorded in the local deed records.
Really? She was in the mortgage business and didn't know about MERS? She was part of the problem? Now she thinks she's going to be part of the solution? She is definitley both sides of the problem. Step up and take some responsibility for your actions. I'm sorry you are losing your house. We all have been hurt by a lack of business. I'm not a fan of the banks, I'm not a fan of the fact that MERS didn't keep track of transfers like they should have, but hey....really, I'm going to feel sorry for someone who was part of the problem? Her loan was done through Greepoint, a specialist in "stated income" loans. Report a story where we should feel sorry for someone truly taken advantage of. This lady took advantage of herself.
I agree with the other comments. I don't see how any of this absolves Ms. Lind of her irresponsibility.
Lets be reasonable here shall we?
I saw no intent of default implied or otherwise by miss Lind. I do see the outrage that this causes and rightly so; but lets be honest with ourselves and not prejudge anyone here! It is not fair to Lind or Mers to suggest impure motives! innocent until proven guilty remember. There is a major problem here that needs addressed. The whole option of modification and refinancing process can only be done legally if there is a clear chain of title and that is where mers has drooped the ball. No one knows who owns the note and that must be cleared up in order to have a legal transaction. Lets fix the problem not shoot the messengers!