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LSC Files Amicus Brief with Law Professors in Third Circuit MERS Case

Last Monday, on March 23rd, the Predatory Lending Unit of the Legal Services Center filed an amicus brief with the Third Circuit urging it to uphold a groundbreaking decision from Judge Curtis Joyner of the Eastern District of Pennsylvania, which found that the Mortgage Electronic Registration System (MERS) violated the Pennsylvania Recording Statute by failing to document and record debt/mortgage note transfers. Student attorney K-Sue Park led the drafting of the brief, with assistance from Attorneys Max Weinstein and Charlie Carriere, and professors from Harvard Law School, Georgetown Law, Brooklyn Law and Cardozo School of Law signed and contributed comments.  The brief described MERS’ contribution to the foreclosure crisis, and the system’s destruction of the county recording system that has ensured the orderly transfer of real property across the country by making real property interests public and transparent since colonial times. MERS is a private system created by the mortgage industry in the mid-1990s to speed the process of securitization of mortgage backed securities (MBS) and to reduce the costs of recording. Now for the majority of mortgage loans across the country, MERS is recorded as nominee for the mortgage note holder in the public record, but MERS does not require that its members record or enter subsequent transfers into its database. By accelerating the securitization of MBS and encouraging sloppy transfers of interests in land in the early 2000s, MERS helped precipitated the foreclosure crisis. To save costs for sellers of MBS, MERS eliminated rules and procedures that protected the rights of mortgage holders and homeowners, putting the security of their homes at risk and causing the costs of enforcing their rights to skyrocket. Without legal authority or public accountability, MERS wrought havoc on the public land records by rendering the national record of interests in land largely inaccessible, inaccurate, incomplete, and unreliable.