How will our Arizona Supreme Court decide the certified questions in Vasquez? I don’t know, but let’s look to other state supreme courts deciding issues of notes, deeds of trust, mortgages and foreclosure in the last year or two. Obviously, there are varying questions before the respective courts, but the list is indicative of the supreme courts willingness to take a deeper look to perform their judicial function of protecting the integrity of state property law:
US Bank’s Allonge and Affidavits Don’t Pass Muster Vermont Supreme C
Nevada Supreme Court
Massachusetts Supreme Court
Maine Supreme Court
Kansas Supreme Court
The relationship that MERS has to Sovereign is more akin to that of a straw man
than to a party possessing all the rights given a buyer. A mortgagee and a
lender have intertwined rights that defy a clear separation of interests,
especially when such a purported separation relies on ambiguous contractual
language. The law generally understands that a mortgagee is not distinct from a
lender: a mortgagee is “[o]ne to whom property is mortgaged: the mortgage
creditor, or lender.” Black’s Law Dictionary 1034 (8th ed. 2004). By statute,
assignment of the mortgage carries with it the assignment of the debt. K.S.A.
58-2323. Although MERS asserts that, under some situations, the mortgage
document purports to give it the same rights as the lender, the document
consistently refers only to rights of the lender, including rights to receive
notice of litigation, to collect payments, and to enforce the debt obligation.
The document consistently limits MERS to acting “solely” as the nominee of the
Georgia Supreme Court
Arkansas Supreme Court
“Permitting an agent such as MERS purports to be to step in and act without a
recorded lender directing its action would wreak havoc on notice in this state”
and let’s throw in a Michigan appellate court just for fun:
The Michigan Court of Appeals issued an opinion with potentially far-reaching effects: MERS – the Mortgage Electronic Registration System – lacks standing to foreclose by advertisement on many homes in Michigan.
The case is Residential Funding Co., LLC v Saurman, Docket No. 290248 (Decided April 21, 2011). In that case, two home owners challenged their evictions at the end of their redemption periods claiming that MERS did not conduct a valid foreclosure. Their reasoning was that MERS did not hold the underlying debt, which the Michigan foreclosure by advertisement statute requires it to hold. The court agreed, and held that the foreclosure sales were invalidated.