Economics

On Second Thought, Don't Show Me the Note

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Will shady creditors be allowed to escape with stolen funds like Old Man Potter?

At Calculated Risk, guest blogger albrt has an analysis of court decisions regarding Mortgage Electronic Registration Systems, Inc., the tracking service that has drawn controversy over its role as a front end for mortgage debts that have been sliced up and securitized.

Among fair housing advocates for housing fairness, MERS' indirect and sometimes ambiguous role in an individual mortgage has led to a widespread belief that many mortgages will be unforecloseable. In reality, most of the legal decisions have turned on paperwork problems more than MERS' novel status, but there are enormous logistical questions around MERS-involved foreclosures.

Albrt has the lowdown on several of these decisions, and enough legal curlicues to keep all you armchair Johnny Cochrans entertained for years. Does naming MERS as the foreclosing entity rob borrowers of their right to pursue predatory lending claims (since MERS was not the original predator)? If so, does the borrower have to be made whole in some other way for the loss of that right? Will MERS' (successful) effort to prove it had title and right to foreclose in a Minnesota case turn out to be a monkey's paw, bringing with it unwelcome fiduciary responsibilities that MERS has been trying to avoid? And plenty more. If you're at all interested in the Show Me the Note movement, it's a must-read.