Banks say they win in MERS ruling
Published 5:00 am Friday, June 7, 2013
State and national banking officials are calling Thursday’s rulings a victory for the lending industry.
Thousands of Oregon foreclosures initiated by MERS between 2008 and 2011 could have been invalidated, had the state Supreme Court ruled that banks broke the law by using MERS’ online database to sell loans to other banks without recording them in local county clerks’ offices.
But while the court said MERS can’t initiate foreclosures, it can keep acting as an “agent” for banks that sell their loans to other institutions, so long as both parties list MERS as agent.
That decision gives banks the go-ahead to keep selling loans to one another through the MERS database, without recording them in the county where the property is located — a practice county and state leaders across the country have railed against, filing numerous lawsuits against MERS.
The Oregon rulings could help clear a massive backlog in foreclosure cases that has held back a broader real estate recovery in Oregon, said Paul Cosgrove, a lobbyist with the Oregon Bankers Association.
Out of court, or nonjudicial, foreclosures typically take about three months to process and put back onto the market for a new buyer. But judicial foreclosures, filed in county circuit courts, can take more than a year to complete.
Foreclosure case filings in Deschutes County Circuit Court jumped from 50 in 2010 to 537 in 2012, as lenders shifted their caseloads to the courts ahead of the Supreme Court rulings.
Meanwhile, default notices — the first step in a nonjudicial foreclosure — plummeted. The county recorded a monthly average of 249 default notices between January 2009 and June 2012, but just 10 on average since July.
“None of us have completely digested these rulings, but it appears the end result is that it clears the pathway for most foreclosures to return to the nonjudicial foreclosure process,” Cosgrove said.
The shift to the longer process forced lenders to divert more of their attention, and funds, into those court cases and away from providing new loans and refinance options, Cosgrove said.
The big concern for lenders was that home sales made after a foreclosure could have been nullified because the sales of that mortgage before the foreclosure weren’t properly recorded.
But the rulings “hopefully clear most of the concerns we have about the status of people’s home titles when they bought a home that had been foreclosed on against the previous owner,” Cosgrove said.
MERS said in a written statement that the court ruling was “consistent with Mortgage Electronic Registration Systems, Inc.’s role and authority to act on behalf of lenders in Oregon,” despite the ruling forbidding the company from foreclosing in its name.
Reached for comment, MERS spokeswoman Janis Smith said the company hasn’t initiated foreclosures since 2011, acting solely as an agent for other lenders the last two years.
The Supreme Court rulings said MERS “may have the authority, as the true beneficiary’s agent, to hold and transfer interests in the trust deed,” a reference to the mortgage note.
Smith said, “We are confident that we do have — and can prove — such authority” to act as an agent.
Still, some real estate attorneys tracking the MERS cases said the decisions leave MERS open to future legal action, if the company doesn’t clean up some of its practices.
Those include allegations that MERS appointed thousands of banking officials across the country to sign off on foreclosure documents as “MERS certifying officers,” despite those officials not being MERS employees and, in some cases, not being aware of state laws where the foreclosures were taking place.
Those allegations were one of the cornerstones of the $25 billion National Mortgage Settlement against the country’s five biggest lenders last year.
“It still remains to be seen if (MERS) is going to game the system,” said Phil Querin, a Portland real estate attorney who specializes in foreclosure issues. “You just don’t know where the next shortcut is going to be taken.”
Querin called Thursday’s rulings “a mixed bag,” adding he and other attorneys were still working to interpret the cases.
On one hand, MERS’ days of acting as the holder of a mortgage note in Oregon are over, and that ban is part of state law.
But MERS will likely continue to be a player in the state’s foreclosure process.
The nonjudicial track is better for the housing market, Querin said. He expects the ruling to create more housing inventory by letting banks cycle their foreclosed homes back onto the market in shorter time.
“And the banks have been chastened, one would think, having paid billions of dollars in fines. They’ve been the recipients of huge amounts of reputation damage. One would think they’ll be more prudent with the foreclosure process if they do it nonjudicially going forward.”