The MERS Mess

In 1995, seeking to streamline mortgage processing, Fannie Mae, Freddie Mac, and a group of banks came together to create a new company to register and assign mortgages. The company, Mortgage Electronic Registration Systems, Inc. (MERS), served as a way for mortgage originators to quickly process new mortgages, centralizing files and cutting down on the need to deal with local government record keepers. With banks increasingly focused on bundling, securitizing, and selling off mortgages they had originated, MERS was designed to move mortgages more rapidly off their hands and into the booming mortgage-backed securities market. The goal of the process, as stated by MERS, was to simplify “the way mortgage ownership and servicing rights are originated, sold and tracked” while also eliminating “the need to prepare and record assignments when trading residential and commercial mortgage loans.”

The business model proved wildly successful. According to the New York Times MERS now “claims to hold title to roughly half of all the home mortgages in the nation — an astonishing 60 million loans.” However, as the system boomed in an era of rampant mortgage speculation and securitization, criticism arose. Detractors, such as Professor Christopher L. Peterson of the University of Utah School of Law, argue that MERS is based on a “problematic legal doctrine,” and that by “adopting such a radical shift in how mortgages are recorded and foreclosed, without legislative change, the mortgage finance companies have rebuilt their industry on a legal foundation of sand.” According to Peterson,

“The shift away from recording loans in the name of actual mortgagees and assignees represents an important policy change that erodes not only the tax base of local governments, but also the usefulness of the public land title information infrastructure. MERS did not, by itself, cause the mortgage finance crisis and its ensuing aftermath. But it was an important cog in the machine that churned out the millions of unsuitable, poorly underwritten, and incompletely documented mortgages that were destined for foreclosure.”

As foreclosure rates have risen, so have legal challenges to the role of MERS in the process. Such cases have, among other issues, questioned the right of MERS to act as the “mortgagee of record,” and to initiate foreclosure proceedings. Results have been mixed. Judges in California, Massachusetts, and Kansas have ruled that MERS “has the authority to initiate home foreclosure proceedings.” MERS itself points to rulings in several other states that it claims show it stands on solid legal ground. However, courts in New York, Florida and Oregon have ruled otherwise, with multiple rulings in Oregon throwing a wrench into the foreclosure market in the state. MERS, in an apparent attempt to clear up issues of standing in foreclosure proceedings,recently began encouraging its members to stop making foreclosures in its name, and is now proposing new rules to curtail the practice.

Some local governments are also exploring potential legal and legislative investigatory proceedings against MERS, upset at the banking industry’s use of MERS to avoid paying local recording fees for mortgages. Given the dire state of state and local budgets, and the unpopularity of the financial industry, it bears watching to see if more local governments follow their lead in an attempt to recoup a source of funding that was previously theirs. MERS and its financial industry backers appear to be girding themselves for coming legislative battles, launching "an aggressive campaign on Capitol Hill to bolster the legality of the way companies have turned mortgages into securities." With housing markets already on shaky ground, and talk of a double dip in prices beginning to surface, the uncertain future of MERS and the mortgages it holds is yet more potentially bad news for areas struggling to recover from the housing bust.