Tuesday, March 8, 2011

MERS in the News: Is the Agard Decision a Harbinger or an Outlier?

During his presentation about foreclosures at last week's Advanced Real Estate Seminar, Ron Wiley discussed In re: Agard, a February 10 decision by the U.S. Bankruptcy Court for the Eastern District of New York. 

A transcript of Agard is available here.

The Bankruptcy Court in Agard held that the Mortgage Electronic Registration System (MERS) did not have the authority to assign a borrower's mortgage document to a trust which held a large number of mortgage-backed securities. And the kicker is this: since MERS could not assign its interest in the mortgage, the mortgage-servicer lacked legal standing to foreclose against the borrower's property.


The potential ramifications of Agard, if its reasoning were to be widely adopted by courts in other jurisdictions, are huge. That's because MERS is listed as the owner of record (or "nominee," in its terminology) on approximately 50% of the outstanding mortgages in the United States.


However, as Ron Wiley pointed out in his presentation, Agard may be an outlier. Other courts have disagreed with the New York court's reasoning in Agard and concluded that MERS does have the authority to assign its interest in mortgages.  Yesterday, Moody's Investor Service predicted that there's only a "slim" chance of a significant number of other courts agreeing with the Agard holding (see the HousingWire report here).


Regardless of how the courts analyze the technical question of MERS's status in foreclosure proceedings, the company appears likely to continue to receive widespread media attention, such as a Times article on Saturday (MERS? It May Have Swallowed Your Loan (here)).