One of the strongest arguments a foreclosure defense attorney can raise is Plaintiff’s lack of Standing. Specifically, standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. Without standing, a Bank is precluded from suing you for foreclose and as a result, is not entitled to take YOUR home. One way to prove a Plaintiff does not possess the requisite legal standing is to show a break in the chain of title. For example, you, the borrower, originally took out your loan with Bank “A”, but now, 5 years later Bank “C” is filing a foreclosure against you. Naturally you may be thinking, who heck is Bank “C” and how did they get their hands on my loan? That is a great question. There MUST be a legal nexus between the two. In order to lawfully transfer the interest in a loan, the bank generally does one of two things: 1) the original mortgagee may endorse the Note to a third party or 2) they may assign the mortgage to a third party. It is the latter that we will be focusing on here today. When assigning a mortgage, most lenders use an entity called Mortgage Electronic Registration Systems, Inc. or MERS for short. MERS acts as a “Nominee” for the lender and typically handles the assignments of mortgage from the original lender to a third party.
However, there’s just one small problem that arises when you see that your mortgage has allegedly been assigned by “MERS” after 2003;
in 2003, Mortgage Electronic Registration Systems, Inc., otherwise known as MERS, officially changed their trademark name to MERSCORP, INC. with the Commissioner of Patents and Trademarks. Thus, when you see lets say a 2011 Assignment from MERS, as Nominee for the Original Lender, to the purported Plaintiff, it makes you wonder just how “MERS” could do this when they haven’t technically existed since 2003. A good foreclosure defense attorney should immediately argue that in 2011, when the purported assignment took place, that Mortgage Electronic Registration Systems, Inc. did not exist and therefore could not have legally assigned the subject mortgage to Plaintiff. If the transfer is invalid, then the Plaintiff does NOT possess the requisite legal standing and should be forbidden from foreclosing on your home.
Should you or anyone you know think that your case involves a potentially illegal transfer from MERS, then do not hesitate to contact our experienced team here at The Freedom Law Firm. 407-883-2618 Call Anytime DAY or NIGHT!