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Wednesday
Aug172011

Foreclosure Case Against MERS Reaches Supreme Court

Source - Housing Wire

A controversial case challenging the ability of Mortgage Electronic Registration Systems to foreclose on a California man was filed with the Supreme Court Monday, making it the first major MERS case to reach the nation's highest court.

Click here for the filing.

If the Supreme Court agrees to hear Gomes v. Countrywide, Gomes' attorney, Ehud Gersten, says the court will have to decide whether a lower court stripped his client, Jose Gomes, of due process by allowing MERS to foreclose without ensuring the registry had the noteholder's authority to foreclose.

"Ultimately, what this case is saying is if you are going to be taking someone's home away from them, do you have the proof or the right to do so?" Gersten said.  "If the Supreme Court starts to question MERS, and its business structure, it is going to have an effect on every MERS case in the country."

The 4th Appellate District Court's decision, which Gomes wants overturned, held MERS had the authority to initiate a foreclosure on Gomes because the deed of trust "explicitly provided MERS with the authority to do so," according to court records.

The state appellate court also ruled in favor of MERS after finding the deed of trust contained no language to suggest the "lender or its successors and assigns must provide Gomes with an assurance that MERS is authorized to proceed with a foreclosure," according to court records.

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Reader Comments (5)

I haven't read the underlying filings because it's 10:30 pm in Chicago and I'm drunk. Thus my opinion is advisory in nature.

A few words, however, before I pass out.

1. MERS doesn't have a fucking leg to stand on when it comes to standing. MERS isn't the injured party, never having had a a real interest in the mortgage: no borrower ever promised to pay MERS, whose involvement in any mortgage arose only after the promissory note was signed. (Standing is the 1st requirement of the plaintiff in a suit: show us your injury (in this case an unfulfilled promise of payment, or get lost.)

2. From the write-up, it looks like the homeowner lost (in Supreme Court parlance, looks like the H/O is the petitioner).

3. I'm assuming that the petitioner has merely filed a petition to get this case before SCOTUS. I.e., the petition has been filed, but SCOTUS has not decided whether or not to take the case. If so, this puts this case in the same procedural posture as Mark Pittman's FOIA case (via Bloomberg as the nominal plaintiff). DB readers will recall that SCOTUS denied cert, leaving Chief Judge Preska's ruling against the Fed--thou shalt disclose the sought after bailout details--intact. The massive difference here is that it appears (unlike Pittman) that the good guy lost below. Thus, a cert denial works in favor of MERS.

4. Pittman's successful case surprised me in that it apparently didn't open the sluice gate of FOIA cases against the Fed (e.g., gimme all docs referring or relating to Ben Bernanke's underwear including but not limited to his panties). This case, involving as it does lawyers, will turn out differently.

That's my $0.02. For now.
Aug 17, 2011 at 11:35 PM | Unregistered CommenterCheyenne
A trend that is happening at least in Las Vegas is some people are wining Quiet Title actions and lack of standing and fraud upon the court. Countrywide has already been charged for wrong doing. However that said, one required a strong attorney and that does not come cheap.

I'll have to look for it but an attorney boldly wrote and article one the "what to do's" if you will. That article was very helpful to me. I have a grasp on what my issue is regarding my home however I'm still having to prove it with an attorney at my side with no guarantees. I try to find that article. It's worth the read.
Aug 18, 2011 at 1:21 AM | Unregistered CommenterDave
I'm assuming that the petitioner has merely filed a petition to get this case before SCOTUS. I.e., the petition has been filed, but SCOTUS has not decided whether or not to take the case.

---

This is correct Cheynne.
Aug 18, 2011 at 3:48 PM | Registered CommenterDailyBail
COSTA MESA, Calif. (AP) -- California prosecutors filed a major lawsuit against several lawyers and call center operators for allegedly running a nationwide scam to dupe desperate homeowners into paying thousands of dollars to join dubious lawsuits against some of the country's largest banks.

http://hosted.ap.org/dynamic/stories/U/US_BANK_LAWSUIT_RAIDS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
Aug 18, 2011 at 3:49 PM | Registered CommenterDailyBail
MERS Case Filed With Supreme Court

http://www.nakedcapitalism.com/2011/08/mers-case-filed-with-supreme-court.html

Thoughts on the case from Yves.
Aug 18, 2011 at 8:10 PM | Registered CommenterDailyBail

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