Travis County Recorder Speaks Out Against MERS and the Fifth Circuit Ruling

In Travis County,  a large Texas county with Austin (my alma mater) serving as the county seat, the County Clerk derided a recent MERS-related decision of the notoriously “conservative” (really meaning bank-oligarchy-friendly rather than some more benign definition of fiscal conservatism) U.S. Court of Appeals for the Fifth Circuit in Harris County v. MERSCorp Incorporated.   The Clerk was quoted as concluding:

For years, MERS violated existing practices in the State of Texas. It breaks my heart that we are unable to stop MERS, stop the damage to the records, and stop the mistreatment of human beings and their assets. Because of the ruling of the Fifth Circuit, we must surrender to what big corporations prefer, not what’s dependable for our citizens and their ownership rights now and into the future.

Travis County Clerk’s Statement also stated:

Most people will never notice that the public paperwork you typically expect to be recorded with the County Clerk whenever you buy a house, get a new lender, or refinance your mortgage isn’t being filed at all. A group of residential lenders created MERSCorp (Mortgage Electronic Recording System) several years ago for its own purposes and for bypassing the public record. This group has succeeded in creating its own private registry. The Travis County Commissioners Court, supported by the Travis County Clerk, joined a federal lawsuit in Nueces County to put a stop to this secret, substitute recording system.

Unfortunately, on June 26th of this year, in a different case, Harris County v. MERSCorp Incorporated, the U.S. Court of Appeals for the Fifth Circuit issued an opinion that allows MERS to continue its private document registry and dodge the public record. Further, the Court found that MERS is not responsible for major gaps in the chain of title and public deed records that misrepresent ownership records in every county in Texas. By the manner in which the opinion was written, the Fifth Circuit made this ruling apply to the Nueces case without ever hearing one word in court from Travis County.

If you are one of the owners of property financed by a MERS member, and you want to know who owns your deed of trust—the lien on your house—you can’t find it in the Clerk’s record because every time they resold your mortgage to another lender, MERS kept the records secret. MERS never filed the documents in the county deed records. Now, the Court has ruled the County Clerk, who is the keeper of real property records, is not required to be informed about the subsequent sales of the lien on your house. MERS tried to claim they were the owners of the deed of trust because they named themselves a beneficiary in the document. MERS also asserted, at the same time, that they had none of the rights or responsibilities of a beneficiary. The Fifth Circuit agreed and declared that this tortured logic did not constitute fraudulent behavior. Further, the Court ruled that the County Clerk, has no right to compel MERS to file future ownership documents as expected nor bring the public record up to date. Unbelievably, the Court ruled that the County Clerk had no right to even file the lawsuit to preserve the integrity of the important real estate records that the Clerk is sworn to protect.

Travis County does not have a ruling in the Nueces County case, and we have not been allowed our day in court. However, to continue the Nueces case would be viewed legally as frivolous because the Fifth Circuit has ruled in a similar case and set new law. The rulings in the Harris County v. MERS case mean that Travis County must stop our legal efforts to protect the permanent library of deed records from the damages inflicted by the members of MERSCorp. The Travis County Commissioners Court has instructed the County Attorney to stop pursuing the MERS case.

We understand that this action is necessary to protect Travis County taxpayers from the liability of various attorneys’ fees and/or possible sanctions. Travis County Clerk DeBeauvoir and the Commissioners’ Court commend the Travis County Attorney for their thorough analysis of the documents that prove MERS direct assault on transparent business dealings.

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3 thoughts on “Travis County Recorder Speaks Out Against MERS and the Fifth Circuit Ruling

  1. Let’s hope Harris County can Appeal to the Supreme Court. Regardless, if I were the Clerk in Travis County, I would simply refuse to record any mortgage, assignment or other document that included MERS in any capacity. I’d love to see what would happen (of course I know what would happen, and it would be ugly, but maybe they could get some national media attention from it).

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